Conditions of Initial Credit Extension. The obligation of each Lender to make the initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent: (a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders: (i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Company; (ii) Notes executed by the Borrowers in favor of each Lender requesting Notes; (iii) the certificate of incorporation (or comparable document) of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate); (iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate); (v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate); (vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate); (vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent: (1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries; (2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries; (3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries; (4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries; (5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and (6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries; (viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required; (ix) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Section 4.01(e) and Section 4.02(a) have been satisfied, (B) no Acquired Business Material Adverse Effect has occurred and (C) the current Debt Ratings; (x) evidence that (1) the Solectron Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made; (xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures; (xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders); (xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and (xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require. (b) Any fees required to be paid on or before the Closing Date shall have been paid. (c) Unless waived by the Administrative Agent and subject to the Fee Letter, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent). (d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders). (e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Term Loan Agreement (Flextronics International Ltd.)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:precedent (provided that the delivery of any document or the performance of any obligation required to be delivered or performed under Section 6.18 shall not be a condition precedent to the initial Credit Extensions on the Closing Date):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)or the General Partner acting on behalf of such Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement executed by the Borrowers and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyGuarantor;
(ii) Notes a Note executed by the Borrowers in favor of each Lender requesting Notesa Note;
(iii) the certificate Security Agreement, executed by the Borrowers, each Guarantor and the Collateral Agent;
(iv) the IP Security Agreements, executed by each Loan Party party thereto and the Collateral Agent;
(v) the Pledge Agreement, executed by the Borrowers, each Guarantor and the Collateral Agent;
(vi) such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by or the Secretary General Partner acting on behalf of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence each Loan Party as the Administrative Agent may request to establish that such Person is duly organized require evidencing the identity, authority and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any Documents to which such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (a party or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents is to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate)party;
(vii) favorable written opinions from each of the following counsel for the Borrowers such documents and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters certifications as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory require to evidence that each Loan Party is duly organized or formed, and, to the Administrative Agent:
(1) C▇▇▇▇▇extent available for entities validity existing and in good standing in such jurisdiction, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL that each Borrower and each Guarantor is validly existing and in good standing in its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiariesjurisdiction of organization or formation;
(viii) a certificate favorable opinion of a Responsible Officer of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P. as counsel to the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and each Lender, as to the matters concerning the Loan Party either (A) attaching copies of all consents, licenses Parties and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so requiredas the Required Lenders may reasonably request;
(ix) the Administrative Agent, the Arrangers and the Lenders shall have received three (3) Business Days prior to the Closing Date so long as such documentation and information has been reasonably requested in writing by the Administrative Agent, the Arrangers, and the Lenders at least seven (7) business days prior to the Closing Date, all documentation and other information about the Borrowers and the Guarantors that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act;
(x) a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to the execution and delivery of the Loan Documents, any Credit Extension to be made on the Closing Date, from the chief financial officer of the General Partner;
(xi) a certificate signed by a Responsible Officer of the Company Partnership certifying (A) that the conditions specified in Section 4.01(eSections 4.01(d) and Section 4.02(a) and (b) have been satisfied, (B) no Acquired Business Material Adverse Effect has occurred and (C) the current Debt Ratings;
(x) evidence that (1) the Solectron Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;; and
(xii) evidence that all insurance required to be maintained pursuant to the executed copy Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Collateral Agent, on behalf of the Acquisition Agreement and Secured Parties, as an additional insured or loss payee, as the case may be, under all other related documentation (without amendment, modification or waiver thereof which is adverse insurance policies maintained with respect to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent assets and properties of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may requireLoan Parties that constitutes Collateral.
(bi) Any All fees required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least two (2) Business Days prior to the Closing Date (or on the Closing Date, if agreed by the Borrowers), plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrowers and the Administrative Agent).
(d) Evidence Since December 31, 2018, there shall not have occurred any event, condition or occurrence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendmenthas had, modification or waiver thereof which is adverse reasonably expected to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders)have, a Material Adverse Effect.
(e) The representations All Loans outstanding under the Existing Credit Agreement shall have been repaid, and warranties all accrued but unpaid interest, commitment fees, and other amounts outstanding thereunder shall have been paid in full; provided that, for the avoidance of (i) doubt, Letters of Credit issued and outstanding under the Borrowers contained in Article V Existing Credit Agreement shall remain outstanding as Letters of Credit hereunder and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in subject to and governed by the case of representations terms and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loansconditions hereof. Without limiting the generality of the provisions of the last paragraph of Section 9.039.03(c), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of (A) this Agreement Agreement, (B) the Guaranty and (C) the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrower Security Agreement;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note;
(iii) the certificate such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party;
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Loan Party is duly qualified to do business organized or formed, and that the Borrower and each Loan Party is validly existing, in good standing under and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the laws conduct of its business requires such jurisdiction)qualification, together with an English translation thereof (if appropriate)except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a certificate favorable opinion of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or▇▇▇▇▇ ▇▇▇▇▇ L.L.P., if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of counsel to the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s SubsidiariesParties, addressed to the Administrative Agent for and each Lender, as to the benefit of matters set forth in Exhibit F and such other matters concerning the Administrative Agent Loan Parties and the Lenders, covering such legal matters Loan Documents as the Administrative Agent Required Lenders may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiariesrequest;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viiivi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixvii) a certificate signed by a Responsible Officer of the Company Borrower certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred Effect; and (C) a calculation of the current Consolidated Cash Flow Available for Debt RatingsService and Consolidated Debt Service Coverage Ratio as of the last day of the fiscal quarter of the Borrower ended September 30, 2014;
(xviii) evidence that (1) a customary solvency certificate from the Solectron Credit Agreement has been chief financial officer, treasurer or concurrently with another senior financial or accounting officer of the Closing Date is being terminated Borrower certifying as to the solvency of the Borrower and all letters of credit thereunder cancelled or defeased its Subsidiaries on a consolidated basis after giving effect to the transactions contemplated hereby in a manner form and substance reasonably satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xivix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrower and the Administrative Agent).
(d) Evidence that The Administrative Agent and the Arranger shall have received copies of:
(i) the Audited Financial Statements;
(ii) (A) the unaudited consolidated balance sheets of the Borrower and its Subsidiaries for each fiscal quarter ended after the calendar year ended December 31, 2013, ended at least 45 days prior to the Closing Date Transaction shall have been consummated substantially concurrently and the related consolidated statements of operations, the related consolidated statement of partners’ capital and the related consolidated statement of cash flows for the corresponding period certified by a Responsible Officer as (i) being prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly presenting the financial condition of the Borrower and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments and (B) the unaudited consolidated balance sheets of Sharyland and its Subsidiaries for each fiscal quarter ended after the calendar year ended December 31, 2013, ended at least 45 days prior to the Closing Date on and the terms set forth related consolidated statement of operations, the related consolidated statement of partners’ capital and the related consolidated statement of cash flows for the corresponding period certified by a Responsible Officer of Sharyland as (i) being prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly presenting the financial condition of Sharyland and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject, in the Acquisition Agreement case of clauses (without amendmenti) and (ii), modification or waiver thereof which is adverse to the Lenders absence of footnotes and to normal year-end audit adjustments; and
(as reasonably determined by iii) projections of the Borrower through 2018 that are not, in the reasonable determination of the Administrative Agent) without , materially inconsistent in an adverse manner with any comparable projections delivered to the Administrative Agent prior consent of to the Lenders)Closing Date.
(e) The representations and warranties of (i) During the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewithperiod from December 31, shall be (A) in the case of representations and warranties that are qualified as 2013 to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except there shall have been no development or event that has had or could reasonably be expected to have a Material Adverse Effect.
(f) The Administrative Agent shall have received, at least 5 days prior to the extent Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT ACT.
(g) The Administrative Agent shall have received satisfactory evidence that all existing Indebtedness other than Indebtedness permitted pursuant to Section 7.06, of the Borrower and its Subsidiaries, shall have been repaid or cancelled and all documentation representing such representations indebtedness shall have been terminated.
(h) The Borrower shall have delivered to the Administrative Agent certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, each of recent date listing all effective financing statements that name the Borrower or TDC as a debtor and warranties specifically refer to an earlier date, that are filed in the jurisdictions in which case they shall filing of a financing statement is necessary to perfect the security interests purported to be true and correct or true and correct in all material respectscreated by the Security Documents, as the case may be, as together with copies of such earlier date; provided that financing statements (none of which shall cover the Collateral except (x) those with respect to which appropriate termination statements executed by the representations and warranties contained in Section 5.09 shall be deemed to refer secured lender thereunder have been delivered to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 Administrative Agent and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loansextent evidencing Permitted Liens).
(i) The Security Document Joinder Conditions shall have been satisfied. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (InfraREIT, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, and the GuarantiesPledge Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrower and counterparts of the Guaranty executed by each Guarantor Subsidiary as of the Closing Date sufficient in number for distribution to the Administrative Agent, each Lender and each Guarantor;
(iiA) Notes a Revolving Note executed by the Borrowers Borrower in favor of each Revolving Lender requesting Notesa Revolving Note, (B) a Term Loan Note executed by the Borrower in favor of each Term Loan Lender requesting a Term Loan Note and (C) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender;
(iii) the certificate such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party;
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters certifications as the Administrative Agent may reasonably request require to evidence that each Loan Party is duly organized or formed, and otherwise that each of the Borrower and each Guarantor is validly existing, in form good standing and substance satisfactory qualified to the Administrative Agent:engage in business in each jurisdiction where its has substantial physical operations;
(1v) C▇▇▇▇▇, M▇▇▇▇▇-the favorable opinion of ▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore outside counsel for FIL to the Loan Parties, addressed to the Administrative Agent and its Subsidiarieseach Lender, and covering the matters set forth in Exhibit F and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viiivi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixvii) a certificate signed by a Responsible Officer of the Company Borrower certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred and Effect; (C) a calculation of the current Debt RatingsConsolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date, and (D) that each Domestic Subsidiary qualifying as a Guarantor Subsidiary has executed and delivered the Guaranty and that the Guarantor Subsidiaries on a consolidated basis satisfy the 90% Threshold as of the most recent completed fiscal quarter end of the Borrower prior to the Closing Date;
(xviii) evidence that (1) the Solectron Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements the Existing Credit Agreement have been or concurrently with the Closing Date are being released and released;
(3ix) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been madean initial Revolving Loan Notice, if any;
(x) an initial Term Loan Interest Rate Selection Notice, if any;
(xi) delivery of documents and/or evidence satisfactory of other actions as may be reasonably necessary under applicable law to perfect the Liens of the Administrative Agent that under the Obligations (Pledge Agreement as a first priority Lien in and to such the extent constituting principal and interest) are “Designated Senior Debt” for purposes Pledged Interests as the Administrative Agent may reasonably require, including the delivery by the Borrower of and as defined all certificates evidencing Pledged Interests, accompanied in each of the Subordinated Indentures;
case by duly executed stock powers (xiior other appropriate transfer documents) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09blank affixed thereto; and
(xivxii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrower and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantiesAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note;
(iii) the certificate such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence Responsible Officers as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer authorized to establish that such Person is duly organized act on behalf of the Borrower in connection with this Agreement and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)other Loan Documents;
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by certificate from the Secretary of State (or comparable public official) of its jurisdiction the State of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)Delaware;
(v) a certificate favorable opinions of (x) Mayer, Brown, R▇▇▇ & Maw LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, substantially in the form of Exhibit E-1 and (y) J▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, General Counsel and Secretary of the secretary or an assistant secretary (or comparable officer) or a director of Borrower, addressed to the Administrative Agent and each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (orLender, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for substantially in the respective corporate laws form of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate)Exhibit E-2;
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party the Borrower and the validity against such Loan Party the Borrower of the Loan Documents to which it is a partyDocuments, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixvii) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred Effect; and (C) the current Debt Ratings;
(xviii) evidence that (1) the Solectron Credit Agreement Prairie Acquisition has been been, or concurrently with the Closing Date is being terminated initial Credit Extension will be, consummated in compliance with applicable law and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agentregulatory approvals, (2) all Liens securing obligations and that no material adverse effect under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) agreements, documents and instruments evidencing the executed copy of Prairie Acquisition shall have occurred and given rise to a right for the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse Borrower to terminate the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09Prairie Acquisition; and
(xivix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrower shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrower and the Administrative Agent).
(d) Evidence that the The Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date occurred on the terms set forth in the Acquisition Agreement (without amendmentor before June 5, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders)2007.
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Pactiv Corp)
Conditions of Initial Credit Extension. The obligation of each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from the Borrower either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a written opinion (addressed to the Administrative Agent’s receipt , the Lenders and the Issuing Banks and dated the Effective Date) of (i) Polsinelli ▇▇▇▇▇▇▇▇ PC, counsel for the Loan Parties as to matters under the laws of California, Delaware, Kansas, Missouri, New York, Oklahoma and the United States and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Loan Parties as to matters under the laws of Washington, in each case, in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received a Committed Loan Notice relating to the initial Credit Extension.
(d) The Administrative Agent shall have received (i) a copy of the followingcertificate or articles of incorporation or organization, as the case may be, including all amendments thereto, of each Loan Party, certified as of which shall be originals or telecopies a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State, (followed promptly by originalsii) unless otherwise specifieda certificate of each Loan Party, each properly dated the Effective Date, substantially in the form of Exhibit E-1 and executed by a Responsible Officer of the signing Loan Party (as applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
(ii) Notes executed by the Borrowers in favor of each Lender requesting Notes;
(iii) the certificate of incorporation (or comparable document) of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (orParty, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a1) that attached thereto is a true and correct complete copy of the by-laws (or comparable document) Organizational Documents of such Loan Party as in effect on the Effective Date and at all times since the date of the resolutions described in clause (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction)2) below, (b2) that attached thereto are is a true and correct copies complete copy of resolutions duly adopted by the board Board of directors Directors or other governing body of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize authorizing the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it such Person is a partyparty and, in the case of the Borrower, the borrowings hereunder, and stating that such consentsresolutions have not been modified, licenses rescinded or amended and approvals shall be are in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ix) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Section 4.01(e) and Section 4.02(a) have been satisfied, (B) no Acquired Business Material Adverse Effect has occurred and (C) the current Debt Ratings;
(x) evidence that (1) the Solectron Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory as to the Administrative Agent relating incumbency and specimen signature of each officer executing any Loan Document or any other instrument, certificate or other document delivered in connection herewith on behalf of such Loan Party and (4) from another officer as to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal incumbency and interest) are “Designated Senior Debt” for purposes of and as defined in each specimen signature of the Subordinated Indentures;
Secretary or Assistant Secretary executing the certificate pursuant to this clause (xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee Letter, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lendersii).
(e) The representations Administrative Agent shall have received the results of a Lien search (including a search as to judgments, pending litigation, bankruptcy and warranties tax matters) made against the Borrower or any of its Subsidiaries under the UCC (or applicable judicial docket) as in effect in any state in which any of the assets of the Borrower or any such Subsidiary Party are located, indicating among other things that its assets are free and clear, or, after giving effect to the Transactions, shall be free and clear, of any Lien except for Permitted Encumbrances.
(f) The Administrative Agent shall have received payment for all accrued costs, fees and expenses (including reasonable legal fees and out-of-pocket expenses) and other compensation due and payable to the Administrative Agent, the Lead Arrangers and the Lenders on the Effective Date (or such payment will be deducted from the initial Credit Extension).
(g) The Collateral and Guarantee Requirement shall have been satisfied; provided that if, notwithstanding the use by the Borrower of commercially reasonable efforts, without undue burden or expense, to cause the Collateral and Guarantee Requirement to be satisfied on the Effective Date, the requirements thereof (other than (i) the Borrowers contained execution and delivery of the Guarantee Agreement by the Borrower and the Collateral Agreement by the Loan Parties, (ii) delivery to the Administrative Agent of certificates (if any) representing the Equity Interests (to the extent certificated) of (1) the Borrower and (2) all Wholly Owned Domestic Subsidiaries of the Borrower, (iii) delivery of Uniform Commercial Code financing statements with respect to perfection of security interests in Article V other assets of the Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code and (iv) the IP Security Agreement in proper and completed form for filing with the United States Patent and Trademark Office or United States Copyright Office) are not satisfied as of the Effective Date, the satisfaction of such requirements shall not be a condition to the availability of the initial Loans on the Effective Date (but shall be required to be satisfied within the period specified therefor in Schedule 5.13 or such later date as the Administrative Agent may reasonably agree). Without limiting the generality of the foregoing, the Administrative Agent acknowledges and agrees that the granting of Mortgages on the Material Owned Property and the obtaining of title insurance in connection with any such Mortgaged Property cannot be accomplished without undue effort or expense prior to the Effective Date, and, therefore, will not be required as a condition to the initial Credit Extension hereunder.
(h) Since December 31, 2011, except as expressly required by the Acquisition Agreement, there shall not have occurred any change or event that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (as defined in the Acquisition Agreement) and, since its formation, except as expressly required by the Acquisition Agreement, there shall not have occurred any change or event that would be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect (as defined in the Acquisition Agreement) on the Borrower.
(i) Certificates of insurance shall have been delivered to the Administrative Agent evidencing the existence of insurance maintained by the Borrower and its Subsidiaries pursuant to Section 5.07 and, the Administrative Agent shall be designated, on behalf of the Secured Parties, as an additional insured and loss payee as its interest may appear thereunder, or solely as the additional insured, as the case may be, thereunder (provided that if such endorsement as additional insured cannot be delivered by the Effective Date, such endorsement may be delivered at such later date as is set forth on Schedule 5.13).
(j) The Lead Arrangers shall have received (i) the Audited Financial Statements and (ii) each Loan Party contained in each other Loan Document or in any document furnished the unaudited consolidated and combined balance sheet of the Borrower as at any time under or in connection herewith or therewithSeptember 30, 2012 and the related consolidated statements of income and cash flows for the three month period ended September 30, 2012.
(k) The Lead Arrangers shall have received the Pro Forma Financial Statements.
(i) The Specified Representations shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects (or if qualified by “materiality”, “material adverse effect” or similar language, in all respects) and (ii) the Acquisition Agreement Representations shall be true and correct, in each case on and as of the Closing Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they .
(m) The Acquisition shall have been consummated or shall be true and correct or true and correct consummated substantially simultaneously with the initial funding of Loans on the Effective Date in all material respectsrespects in accordance with the Acquisition Agreement. No provision of the Acquisition Agreement has been waived, as amended, supplemented or otherwise modified in a manner material and adverse to the case may beAgents, as the Issuing Banks or the Lenders without the consent of the Lead Arrangers (such earlier date; provided that consent not to be unreasonably withheld, delayed or conditioned).
(xn) the representations and warranties contained in Section 5.09 The Refinancing shall have been consummated or shall be deemed to refer consummated simultaneously with the initial funding of Loans on the Effective Date.
(o) The Lenders shall have received (i) a certificate, substantially in the form of Exhibit E-2, from the Financial Officer of the Borrower certifying that, on a consolidated basis after giving effect to the most recent Financial Statements furnished pursuant to subsections (a) Transactions, the Borrower and Subsidiaries are Solvent and (bii) of Section 6.01 a certificate, in form and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent substance reasonably satisfactory to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03Administrative Agent, for purposes of determining compliance with certifying that the conditions specified in this Section 4.01clauses (h), each Lender that has signed this Agreement (l), (m) and (n) above have been satisfied.
(p) The Lenders shall be deemed have received all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least five days prior to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved the Effective Date by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to or the proposed Closing Date specifying its objection theretoLead Arrangers required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
Appears in 1 contract
Sources: Credit Agreement (Lmi Aerospace Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement Agreement, each of the Security Instruments, the Subsidiary Guaranty and the GuarantiesMid-State Homes Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrower;
(ii) Revolving Loan Notes executed by the Borrowers Borrower in favor of each Revolving Lender requesting Notessuch a Note;
(iii) Term Loan Notes executed by the certificate Borrower in favor of incorporation each Term Loan Lender requesting such a Note;
(iv) such certificates of resolutions or comparable document) other action, incumbency certificates (including specimen signatures), and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party;
(ivv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Loan Party is duly qualified to do business organized or formed, and that each of the Borrower and each Guarantor is validly existing, in good standing under and qualified to engage in business in (A) its jurisdiction of formation and (B) in Alabama if the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary Borrower or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any formed in a jurisdiction outside the United Statesother than Alabama but has assets or operations in Alabama, any comparable document provided for including in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct each such case certified copies of resolutions duly adopted by the board each Loan Party’s Organization Documents, shareholders’ agreements, certificates of directors of such Loan Party (or other comparable enabling action) and continuing good standing and/or qualification to engage in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate)business;
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) favorable opinion of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇ ▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL to the Loan Parties, and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányiappropriate local counsel to the Loan Parties, Hungarian counsel for FIL each addressed to the Administrative Agent and its Subsidiarieseach Lender, as to the matters set forth in Exhibit G and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viiivii) a certificate of a Responsible Officer of each Loan Party the Borrower either (A) attaching copies of identifying all consents, licenses and approvals required in connection with the execution, delivery and performance by such each Loan Party and the validity against each such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, and attaching true and correct copies thereof or (B) stating that no such consents, licenses or approvals are so required;
(ixviii) a certificate signed by a Responsible Officer of the Company certifying Borrower certifying:
(A) that the conditions specified in Section 4.01(eSections 5.02(a) and Section 4.02(a(b) have been satisfied, ,
(B) no Acquired Business Material Adverse Effect has occurred and as to the matters described in Section 5.01(d);
(C) that none of the current Debt RatingsMerger Documents (including any condition to consummation of the Merger) has been altered, amended, waived or otherwise changed or supplemented since their execution on June 17, 2005, in any respect materially adverse to the Lenders, except to the extent agreed to by prior written consent of the Arrangers, which consent shall not be unreasonably withheld;
(xD) evidence that (1) the Solectron Credit Agreement Merger has been consummated prior to, or concurrently is being consummated substantially simultaneously with, the Closing Date, in accordance with the Closing Date is being terminated and all letters terms of credit thereunder cancelled the Merger Documents (only as amended, altered, waived or defeased otherwise changed in a manner satisfactory to the Administrative Agent, compliance with subpart (2D) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been madeabove);
(xiE) that there has been no material adverse change in the facts and information regarding the Loan Parties as represented to date;
(ix) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each Arrangers of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendmentconsummation, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee Letter, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently simultaneously with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as occurrence of the Closing Date, except of each of the following, in each case in compliance with all applicable laws and regulations, with the receipt of all necessary material governmental, shareholder and third party consents (including ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ clearance) and approvals: (A) the creation of New Holdco and the transfer of the Equity Interests of US Pipe and of JW MergerCo thereto, such that after giving effect thereto (but prior to giving effect to the extent that such representations Merger and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.US Pipe
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or either copies transmitted by electronic transmission or telecopies (followed followed, in each case, promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyAgreement;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note;
(iii) completed lien searches, listing all effective financing statements filed in the jurisdictions that the Administrative Agent may deem necessary or reasonably desirable in order to perfect the liens and security interests created under the Security Documents covering the Collateral described in the Security Documents that name any Loan Party or any Subsidiary of any Loan Party as debtor, together with copies of such other financing statements, which liens shall be listed on Schedule 4.01;
(iv) an incumbency certificate of incorporation (or comparable documentexecuted by the Responsible Officer(s) of each Loan Party certified by evidencing the Secretary identity, authority and capacity of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence each Responsible Officer authorized to act as the Administrative Agent may request to establish that such Person is duly organized and existing under the laws of such jurisdiction), together a Responsible Officer in connection with an English translation thereof (if appropriate);
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Document to which such Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party;
(v) a certificate copies, certified by the Secretary or Assistant Secretary (or other appropriate Responsible Officer) of the secretary applicable Loan Party, of all resolutions and other appropriate authorizing actions taken or an assistant secretary (to be taken by or comparable officer) or a director on behalf of each Loan Party certifying (a) that attached thereto is a true authorizing and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize approving the execution, delivery and performance by such Person of the all Loan Documents to be executed by which such Person Loan Party is a party, which resolutions or authorizing actions have not been revoked, modified, amended or rescinded and the consummation are in full force and effect as of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate)Closing Date;
(vi) a certificate such Organizational Documents, certified by the Secretary or Assistant Secretary (which may be combined with the certificate set forth in clause (v) aboveor other appropriate Responsible Officer) of the secretary applicable Loan Party, and/or certificates of good standing or an assistant secretary (similar certificates or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters instruments as the Administrative Agent may reasonably request require to evidence that each Loan Party is duly organized or formed, and otherwise that the Borrower is validly existing, in form good standing and substance satisfactory (if applicable) qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiariesextent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(2vii) P▇▇▇, a favorable legal opinion of (A) ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL to the Loan Parties, and its Subsidiaries; and
(6B) N▇▇▇ ▇▇ TrócsányiGeneral Counsel of CDII, Hungarian counsel for FIL each addressed to the Administrative Agent and its Subsidiarieseach Lender, as to such matters concerning the Loan Parties (or any of them) and the Loan Documents as the Administrative Agent may reasonably request;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all material consents, licenses and approvals required to be obtained by any Loan Party in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ix) a copy of the Pemex Contract, together with a certificate of a Responsible Officer of each Loan Party certifying such document as being a true, correct, and complete copy thereof;
(x) a certificate signed by a Responsible Officer of the Company Borrower certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied.
(b) There shall not have occurred since December 31, (B) no Acquired Business 2012 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect has occurred and (C) the current Debt RatingsEffect;
(xc) evidence The Administrative Agent shall have received certification as to the financial condition and Solvency of the Borrower and its Subsidiaries from the chief financial officer of the Borrower after giving effect to the consummation of the Transaction and the incurrence of indebtedness related thereto;
(d) There shall be no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened against the Borrower in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect;
(1e) The Administrative Agent shall be satisfied that all Loans made by the Lenders to the Borrower shall be in full compliance with the Federal Reserve's margin regulations;
(f) The Administrative Agent shall have received (a) the Solectron Credit Agreement has been or concurrently with Borrower's unqualified audited consolidated financial statements for the Closing Date is being terminated year ending 2012, (b) forecasts of consolidated balance sheets, income statements and all letters cash flow statements of credit thereunder cancelled or defeased the Borrower and its Subsidiaries for each of the Borrower's fiscal quarters ending June 30, 2013, September 30, 2013 and December 31, 2013, in a manner each case, prepared by management of the Borrower and in form and substance substantially similar to those delivered to the Senior Lenders and (c) budgets and forecasts of consolidated balance sheets, income statements and cash flow statements of the Borrower and its Subsidiaries for each of the Borrower's fiscal years 2014 through and including 2015, in each case, prepared by management of the Borrower and in form and substance substantially similar to those delivered to the Senior Lenders;
(g) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.require and timely request;
(bh) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless paid unless the receipt thereof on or before the Closing Date is or has been waived by the Administrative Agent and subject to the Fee Letter, the Company recipient thereof; and
(i) The Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced in a reasonably detailed statement and received by the Borrower prior to or at a reasonable time on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such reasonable fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrower and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.038.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement and the GuarantiesGuaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrowers;
(ii) Notes a Note executed by the Borrowers in favor of each Lender requesting Notesa Note;
(iii) the certificate of incorporation (or comparable document) of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any written advice relating to such Person is organized under the laws of any jurisdiction outside the United States, such other evidence Lien searches as the Administrative Agent shall have requested, and such termination statements or other documents as may request be necessary to establish confirm that such Person the personal property of the Borrowers is duly organized and existing subject to no other Liens in favor of any Persons (other than Liens permitted under the laws of such jurisdiction), together with an English translation thereof (if appropriateSection 7.01);
(iv) to the extent such jurisdiction has the legal concept certificates of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence resolutions or other action, incumbency certificates and/or other certificates of such good standing, a Certificate Responsible Officers of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party;
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true such documents and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters certifications as the Administrative Agent may reasonably request require to evidence that each Loan Party is duly organized or formed, and otherwise that each Loan Party is validly existing, in form good standing and substance satisfactory qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiariesextent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(2vi) P▇▇▇an opinion of general counsel of the Borrowers, and an opinion of D▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ BW▇▇▇▇▇▇ LLP, Canadian special counsel for FIL to the Borrowers, each addressed to the Administrative Agent and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányieach Lender, Hungarian counsel for FIL as to the matters set forth in Exhibit F and its Subsidiariessuch other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viiivii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixviii) a certificate signed by a Responsible Officer of the Company Borrowers certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred Effect; and (C) a calculation of the current Debt RatingsConsolidated Leverage Ratio and Consolidated Fixed Charge Coverage Ratio as of the last day of the fiscal quarter of Imation most recently ended prior to the Closing Date;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) evidence that (1) the Solectron Existing Credit Agreement has been or concurrently with the Closing Date is being terminated terminated, with all amounts owing or outstanding thereunder repaid, and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements the Existing Credit Agreement have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09released; and
(xivxi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrowers shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrowers and the Administrative Agent).
(d) Evidence that the The Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date occurred on the terms set forth in the Acquisition Agreement (without amendmentor about March 31, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans2006. Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Imation Corp)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make the initial its Initial Credit Extension available to the Borrower hereunder on the Closing Date is subject to satisfaction of the following conditions precedentprecedent in addition to those specified in Section 4.02:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer (or, with respect to any Loan Party other than the Borrower, by a Secretary or other Person duly appointed as an attorney-in-fact by a power of attorney granted by, or pursuant to an authorization of, the board of directors or similar body of such Loan Party) of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantiesGuaranty Agreement, sufficient in number for distribution to the Administrative Agent, each Lender Agent and the CompanyBorrower;
(ii) Notes executed by the Borrowers Borrower in favor of each Lender requesting Notesthat requested Notes at least two Business Days prior to the Closing Date;
(iii) the certificate such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party or is to be a party;
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence certifications as the Administrative Agent or its counsel may reasonably request to establish evidence that such Person each Loan Party is duly qualified to do business organized or formed, validly existing and in good standing under the laws in its jurisdiction of such jurisdiction), together with an English translation thereof (if appropriate)organization;
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, opinion (addressed to the Administrative Agent for the benefit of the Administrative Agent and the LendersLenders and dated the Closing Date) of (A) Weil, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) CGotshal & ▇▇▇▇▇▇ LLP, MNew York counsel to the Borrower and the other Loan Parties, substantially in the form of Exhibit H-1, (B) ▇▇▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Colt local counsel to the Parent, substantially in the form of Exhibit H-2, (C) Weil, Gotshal & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇▇▇▇, local counsel to the Loan Parties organized or existing under the laws of England and Wales, substantially in the form of Exhibit H-3, and (D) ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇▇ Amsterdam N.V., Singapore local counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ Bto ▇▇▇▇▇▇ LLPNetherlands Holdings B.V., Canadian substantially in the form of Exhibit H-4, and, in the case of each such opinion required by this clause (v), covering such other matters relating to the Loan Parties, the Loan Documents or the transactions contemplated hereby as the Required Lenders shall reasonably request, and the Parent and the Borrower hereby request such counsel for FIL and its Subsidiariesto deliver such opinions;
(vi) if applicable, the funding indemnity letter referenced in Section 2.02(f), which shall have been received within the time prior to the Closing Date as required in such section; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixvii) a certificate signed by a Responsible Officer of the Company Parent certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, satisfied and (B) no Acquired Business that since December 31, 2010 there shall not have occurred any events or changes that, individually or in the aggregate, have had or could reasonably be expected to have a Material Adverse Effect has occurred and (C) the current Debt Ratings;
(x) evidence that (1) the Solectron Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may requireEffect.
(b) Any (i) All fees required to be paid to any Agent on or before the Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee Letter, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement and Guaranty Agreement (Willis Group Holdings PLC)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note;
(iii) executed counterparts of the certificate Guaranty, executed by each Domestic Subsidiary;
(iv) executed counterparts of incorporation the Borrower Security Agreement and Subsidiary Security Agreement, together with:
(A) proper financing statements (Form UCC-1 or comparable documentthe equivalent) or other Perfection Documents fully executed (as appropriate) for filing under the Uniform Commercial Code or other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable, to perfect the security interests purported to be created by the Borrower Security Agreement and the Subsidiary Security Agreement, as applicable, in each case to the extent such perfection is required thereby (including control agreements in respect of deposit accounts);
(B) copies of requests for information or copies, or equivalent reports as of a recent date, listing all effective financing statements that name the Borrower or any of its Subsidiaries as debtor and that are filed in the jurisdictions referred to in clause (A) above and in such other jurisdictions in which the Collateral is located on the date of the initial Credit Extension or as otherwise deemed appropriate by the Administrative Agent, together with copies of such other financing statements that name the Borrower or any of its Subsidiaries as debtor (none of which shall cover the Collateral except (x) to the extent evidencing Permitted Liens or (y) those in respect of which the Administrative Agent shall have received termination statements (Form UCC-3) or such other termination statements as shall be required by local law fully authorized or executed for filing);
(C) evidence of the completion of all other recordings and filings of, or with respect to, the Borrower Security Agreement and the Subsidiary Security Agreement as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable to perfect and protect the security interests intended to be created by the Borrower Security Agreement and the Subsidiary Security Agreement, as applicable; and
(D) subject to the last sentence of Section 6.14, evidence that all other actions necessary or, in the reasonable opinion of the Administrative Agent, desirable to perfect and protect the security interests purported to be created by the Borrower Security Agreement and, if applicable, the Subsidiary Security Agreement (to the extent such perfection is required thereby) have been, or will be, substantially contemporaneously with the initial Credit Extension, taken, and the Borrower Security Agreement and the Subsidiary Security Agreement shall be in full force and effect;
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly organized require evidencing the identity, authority and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any Documents to which such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate)party;
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures such documents and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters certifications as the Administrative Agent may reasonably request require to evidence that each Loan Party is duly organized or formed, and otherwise that the Borrower is validly existing, in form good standing and substance qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vii) a favorable opinion of counsel to the Loan Parties satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇addressed to the Administrative Agent, Colt & Mosle LLP, U.S. counsel for FIL as to the matters set forth in Exhibit E and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL such other matters concerning the Loan Parties and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiariesthe Loan Documents as the Administrative Agent may reasonably request;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ix) a certificate signed by a Responsible Officer of the Company Borrower certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred Effect; and (C) a calculation of the current Debt RatingsConsolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(x) evidence that (1) a duly completed Compliance Certificate as of the Solectron Credit Agreement has been or concurrently with last day of the Closing Date is being terminated and all letters fiscal quarter of credit thereunder cancelled or defeased in the Borrower ended on June 30, 2007, signed by a manner satisfactory to Responsible Officer of the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been madeBorrower;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each consolidating balance sheets of the Subordinated IndenturesBorrower and its Subsidiaries as of June 30, 2007 and the related consolidating statements of income or operations, shareholders’ equity and cash flows for the 12 month period ending on such date, in reasonable detail and prepared in accordance with GAAP; and;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrower and the Administrative Agent).
(d) Evidence that the The Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date occurred on the terms set forth in the Acquisition Agreement (without amendmentor before September 30, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans2007. Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be (to the extent applicable) originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
(ii) Notes executed by the Borrowers in favor of each Lender requesting Notes;
(iii) the certificate such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party;
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Loan Party is duly qualified to do business and organized or formed, validly existing, in good standing under (as applicable) and qualified to engage in business in the laws jurisdiction of such jurisdiction), together with an English translation thereof (if appropriate)its formation;
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director favorable opinion of each Loan Party certifying of (aA) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (orG▇▇▇▇▇, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) D▇▇▇ & C▇▇▇▇▇▇▇ LLP, Mcounsel to the Loan Parties, (B) J▇▇▇▇ ▇. ▇▇▇▇▇-▇▇ III, internal counsel to the Loan Parties, (C) Loyens & Loeff N.V., Netherlands counsel to the Loan Parties and (D) B▇▇▇▇ ▇▇▇▇▇▇▇▇, Colt & Mosle LLPLuxembourg counsel to the Loan Parties, U.S. counsel for FIL in each case addressed to the Administrative Agent and its Subsidiarieseach Lender;
(2vi) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries[Reserved];
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixvii) a certificate signed by a Responsible Officer of the Company Holdings certifying that (A) that the conditions specified representations and warranties of (i) Holdings and the Borrowers contained in Section 4.01(eArticle V and (ii) each Loan Party contained in each other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and Section 4.02(a) have been satisfiedcorrect on and as of the Closing Date, (B) no Acquired Business Default exists, or would result from such proposed Credit Extension or from the application of the proceeds thereof, (C) there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred Effect; and (CD) the current Debt Ratings;
(xviii) [Reserved]; and
(ix) evidence that (1) the Solectron Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements the Existing Credit Agreement have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may requirereleased.
(b) Any fees required to be paid by the Loan Parties on or before the Closing Date under the Loan Documents shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent and the Arrangers required to be reimbursed by this Agreement (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction The Lenders shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendmentreceived, modification or waiver thereof which is adverse at least five days prior to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case all information they shall be true have requested under anti-terrorism and correct or true anti-money-laundering laws and correct in all material respectsregulations, as including the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any LoansPatriot Act. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Celanese Corp)
Conditions of Initial Credit Extension. The Except as set forth in Section 6.19, the obligation of the L/C Issuer and each Lender to make the initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative the Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (or the Lenders, as applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyAgreement;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note;
(iii) the certificate such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by evidencing (A) the Secretary authority of State each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to become a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications, as Agent may reasonably request, to the extent such jurisdiction has the legal concept of a corporation being evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and a Governmental Authority qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction issues any evidence of such good standing, could not reasonably be expected to have a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)Material Adverse Effect;
(v) a certificate favorable opinions of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the executionSkadden, delivery and performance by such Person of Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, LLP, counsel to the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby Parties and (ii) designate general corporate counsel to the officersLoan Parties, directors in each case addressed to the Agent and attorneys authorized so each Lender, as to execute, deliver such matters concerning the Loan Parties and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate)Loan Documents as the Agent may reasonably request;
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed signed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viii) a certificate of a Responsible Officer of each Loan Party either the Borrower certifying (A) attaching copies that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of all the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby to occur on the Closing Date, and (D) either that (1) no consents, licenses and or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating or (2) that all such consents, licenses and approvals shall be have been obtained and are in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixvii) a certificate signed by a Responsible Officer evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Company certifying (A) that Agent required under the conditions specified in Section 4.01(e) and Section 4.02(a) Loan Documents have been satisfied, (B) no Acquired Business Material Adverse Effect has occurred obtained and (C) the current Debt Ratingsare in effect;
(xviii) evidence a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory to the Agent evidencing that (1) the Solectron Existing Credit Agreement has been been, or concurrently with the Closing Date is being, terminated, all obligations thereunder are being terminated paid in full (other than contingent obligations that are not yet due and all letters Existing Letters of credit thereunder cancelled Credit that will constitute Letters of Credit hereunder or defeased in a manner satisfactory to the Administrative Agentare cash collateralized or backstopped as required thereunder), (2) and all Liens securing obligations under such credit agreements the Existing Credit Agreement have been been, or concurrently with the Closing Date are being, released;
(ix) the Security Documents and certificates evidencing any stock being released pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) the Facility Guaranty, duly executed by each Loan Party party thereto;
(xi) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Agent of all Inventory of the Loan Parties, the results of which are satisfactory to the Agent and (3B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Agent;
(xii) results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements, releases, satisfactions, discharges or subordination agreements, as applicable, reasonably satisfactory to the Agent are being tendered concurrently with the Closing Date or with respect to which other arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xixiii) evidence satisfactory Uniform Commercial Code financing statements, required by law to be filed, registered or recorded to create or perfect the Administrative Agent that first priority Liens intended to be created under the Obligations Loan Documents (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification such Liens can be created or waiver thereof which is adverse to the Lenders (as reasonably determined perfected by the Administrative Agentfiling of such financing statements) without and the prior consent of Agent shall have been authorized to file, register or record such financing statements on the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09Date; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.;
(b) Any after giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $250,000,000;
(c) the Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the quarter ended on January 30, 2016 and executed by a Responsible Officer of the Borrower;
(d) there shall not have been any Material Adverse Effect since the date of the Audited Financial Statements;
(e) the Agent shall have received and be reasonably satisfied with the Consolidated income statement, balance sheet, and statement of cash flow, on a quarterly basis for the period commencing on the Closing Date and ending with the end of the Fiscal Year in which the Closing Date occurs and on an annual basis for the 2016 through 2018 Fiscal Years (it being understood that such projected financial information is subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties, that no assurance is given that any particular projections will be realized, that actual results may differ and that such differences may be material);
(f) there shall not be pending any litigation or other proceeding pending before any Governmental Authority that challenges the legality of, or otherwise seeks to enjoin, the transactions contemplated hereby;
(g) the consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(h) all fees required to be paid to the Agent or the Arranger on or before the Closing Date shall have been paid.paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full or, in each case, will be paid substantially concurrently with the initial funding of the Loans hereunder;
(ci) Unless waived by the Administrative Agent and subject to the Fee Letter, the Company Borrower shall have paid all reasonable and documented fees, charges and out-of-pocket disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such reasonable and documented fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings Closing Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrower and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated or, in each case, will be paid substantially concurrently with the Closing Date on initial funding of the terms set forth Loans hereunder;
(j) the Agent and the Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act in each case, the Acquisition Agreement (without amendment, modification or waiver thereof results of which is adverse are satisfactory to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).; and
(ek) The representations and warranties of (i) the Borrowers contained no material adverse changes in Article V and (ii) each governmental regulations or governmental policies affecting any Loan Party contained in each other Loan Document or in or, to the extent related to the extensions of credit hereunder, any document furnished at any time under or in connection herewith or therewith, Credit Party shall be (A) in the case of representations and warranties that are qualified as have occurred prior to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Foot Locker, Inc.)
Conditions of Initial Credit Extension. The effectiveness of this Agreement and the obligation of each Lender and each L/C Issuer to make the its initial Credit Extension hereunder on the Closing Date is are subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originalsoriginals to the extent set forth below or otherwise requested by the Administrative Agent) unless otherwise specified, each properly executed by a Responsible Officer of the signing each Loan Party (as applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantiesGuaranty, sufficient in such number for distribution to the as requested by Administrative Agent, each Lender and the Company;
(ii) Notes executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note (which, to the extent delivered via e-mail (in a .pdf format) or telecopies, shall be followed promptly by originals);
(iii) a duly executed Borrowing Notice with respect to the certificate of incorporation (or comparable document) of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)Closing Date Term Loans;
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing Disbursement and a Governmental Authority in such jurisdiction issues any evidence of such good standingRate Management Authorization and Instruction Agreement, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified if, and as, required by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or all other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate)any Loan Party;
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters Parties as the Administrative Agent may reasonably request require evidencing the identity, authority and otherwise capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in form connection with this Agreement and substance satisfactory the other Loan Documents to which a Loan Party is a party;
(vi) such documents and certifications as the Administrative Agent:Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(1vii) C▇▇▇▇▇, M▇▇▇▇▇-a favorable opinion of ▇▇▇▇▇▇▇, Colt ▇ & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL to the Borrower, addressed to the Administrative Agent and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányieach Lender, Hungarian counsel for FIL as to such matters concerning the Loan Parties and its Subsidiariesthe Loan Documents as the Administrative Agent may reasonably request;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ix) a certificate signed by a Responsible Officer of the Company each Loan Party certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, and (B) that there has been no Acquired Business event or circumstance since September 30, 2019 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred and (C) the current Debt RatingsEffect;
(x) evidence that (1) a Solvency Certificate from the Solectron Credit Agreement has been or concurrently with Borrower certifying that, after giving effect to the transactions to occur on the Closing Date is being terminated and (including, without limitation, all letters of credit thereunder cancelled or defeased in a manner satisfactory Credit Extensions to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with occur on the Closing Date Date), the Combined Companies, taken as a whole and on a consolidated basis, are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been madeSolvent;
(xi) evidence satisfactory a duly completed Compliance Certificate calculated on a Pro Forma Basis for the Combined Companies’ fiscal quarter ending September 30, 2019, together with backup documentation acceptable to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated IndenturesAgent;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lendersfinancial statements referenced in Section 5.05(a);
(xiii) true correct and complete copies such additional customary assurances or certifications with respect to satisfaction of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to conditions precedent in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions Article IV as the Administrative Agent Agent, the L/C Issuers or the Required Lenders reasonably may require; and
(a) the Administrative Agent and each Lender shall have received all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and (b) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Closing Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (b) shall be deemed to be satisfied).
(b) Any All fees required hereunder or under the Fee Letter to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of ▇▇▇▇▇ Day and ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, in each case, as outside counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced (which invoice may be in summary form) at least two (2) Business Days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrower and the Administrative Agent).
(d) Evidence To the extent that any Project is not included in the pool of Qualified Unencumbered Properties prior to the Closing Date, any Project to be added on the Closing Date Transaction shall have been consummated substantially concurrently with satisfied the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent requirements of the LendersSection 6.12(a).
(e) The representations and warranties of (i) All obligations outstanding under the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, Existing Credit Agreement shall be (A) concurrently paid in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loansfull. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Cole Office & Industrial REIT (CCIT II), Inc.)
Conditions of Initial Credit Extension. The obligation effectiveness of each Lender to make this Agreement and the initial amendment and restatement of the Existing Credit Extension hereunder on the Closing Date Agreement is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:: 115
(i) executed counterparts of (A) this Agreement sufficient in number for distribution to the Administrative Agent and its counsel, each Lender and the GuarantiesCompany and (B) (1) the Security Agreement, (2) the Pledge Agreement, (3) the Escrow and Security Agreement and (4) each Guaranty required to be delivered in connection herewith, in each case, sufficient in number for distribution to the Administrative Agent, each Lender the Administrative Agent’s counsel and the Company;
(ii) Notes (A) a Revolving Note executed by the Company in favor of each Lender requesting a Revolving Note, (B) a New Vehicle Floorplan Note executed by the New Vehicle Borrowers in favor of each Lender requesting Notesa New Vehicle Floorplan Note, and (C) a Used Vehicle Floorplan Note executed by the Used Vehicle Borrowers in favor of each Lender requesting a Used Vehicle Floorplan Note;
(iii) the certificate such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party;
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Loan Party is duly qualified to do business organized or formed, and that each Loan Party is validly existing, in good standing under and qualified to engage in business in the laws respective jurisdictions specified in Schedule 4.01, which includes each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such jurisdiction)qualification, together with an English translation thereof (if appropriate)except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a certificate favorable opinion of ▇▇▇▇▇ Day, counsel to the secretary or an assistant secretary (or comparable officer) or a director of Loan Parties, addressed to the Administrative Agent and each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (orLender, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that form attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate)as Exhibit L;
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) favorable opinion of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized local counsel to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers Parties in Florida and FIL’s SubsidiariesNorth Carolina, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise each Lender in form and substance reasonably satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viiivii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixviii) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, and (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred and (C) as to the current Debt Ratingsabsence of any action, suit, investigation or proceeding pending or, to the knowledge of the Company, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect;
(ix) a certificate signed by the chief financial officer, treasurer or chief accounting officer of the Company, certifying that the Company individually is Solvent and the Loan Parties taken as a whole are Solvent, in each case after giving effect to this Agreement and the other Loan Documents and the Indebtedness pursuant hereto and thereto; 116
(x) evidence that (1) the Solectron Credit Agreement has been or concurrently with the Closing Date is being terminated a duly completed Compliance Certificate in form and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements substance satisfactory to the Administrative Agent relating to as of the Notes Repayments have been madelast day of the fiscal quarter of the Company ended on June 30, 2019, signed by a Responsible Officer of the Company;
(xi) evidence a duly completed Revolving Borrowing Base Certificate in form and substance reasonably satisfactory to the Administrative Agent that dated as of the Obligations (Closing Date certifying as to the extent constituting principal and interest) are “Designated Senior Debt” for purposes Revolving Borrowing Base as of and as defined in each June 30, 2019, signed by a Responsible Officer of the Subordinated IndenturesCompany;
(xii) a duly completed Used Vehicle Floorplan Borrowing Base Certificate, in form and substance reasonably satisfactory to the executed copy Administrative Agent dated as of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse Closing Date certifying as to the Lenders (Used Vehicle Floorplan Borrowing Base as reasonably determined of August 31, 2019, signed by the Administrative Agent) without the prior consent a Responsible Officer of the Lenders)Company;
(xiii) true correct a certificate of a Responsible Officer of the Company evidencing that no consents or waivers are required pursuant to any Franchise Agreement or Framework Agreement that have not been obtained;
(xiv) duly executed consents and complete waivers required pursuant to any Franchise Agreement or Framework Agreement (if any);
(xv) a certificate of a Responsible Officer of the Company certifying that there have been no changes to the Indenture delivered on and as in effect as of July 25, 2016 except (a) the addition of more guarantors and (b) changes reflected in supplements or amendments publicly filed with the SEC in accordance with SEC requirements;
(xvi) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, including endorsements naming the Administrative Agent (on behalf of the Secured Parties ) as an additional insured or lender’s loss payee, as the case may be, on all insurance policies maintained with respect to properties of the Company or any Loan Party constituting part of the Collateral;
(xvii) consolidated balance sheets for the Company and each Subsidiary as at the end of June 30, 2019, and the related consolidated statements of income or operations, all in reasonable detail prepared by management of the Company or such Subsidiary, including designations of New Vehicle and Used Vehicle inventories and associated lien payoffs;
(xviii) forecasts (including assumptions) prepared by the management of the Company of consolidated balance sheets, income statements and cash flow statements for the Company and its Subsidiaries, in each case in form and substance reasonably satisfactory to the Administrative Agent for each of the first five fiscal years following the Closing Date;
(xix) delivery by the Company and each applicable Loan Party owning any Equity Interests required to be pledged (if any) pursuant to this Agreement or the Pledge Agreement of all stock certificates evidencing such pledged Equity Interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto and (y) delivery by the Company and each other applicable Loan Party owning any Equity Interests required to be delivered in escrow pursuant to the Escrow and Security Agreement of all stock certificates evidencing such Equity Interests
(xx) UCC financing statements for filing in all places required by applicable law to perfect the Liens of the Administrative Agent for the benefit of the Secured Parties under the Security Instruments as a perfected Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements; 117
(xxi) UCC search results with respect to the Borrowers showing only Liens acceptable to the Administrative Agent (or pursuant to which arrangements reasonably satisfactory to the Administrative Agent shall have been made to remove any unacceptable Liens promptly after the Closing Date);
(xxii) a certificate signed by a Responsible Officer of the Company certifying as to the identity of any Unrestricted Subsidiaries and that such Subsidiaries meet the requirements to be Unrestricted Subsidiaries;
(xxiii) with respect to any Eligible Borrowing Base Real Estate that is reflected in the Revolving Borrowing Base Certificate delivered pursuant to clause (xi) above, each of the following, in form and substance reasonably acceptable to the Administrative Agent: (A) a FIRREA-conforming appraisal, (B) a Phase I (and, if reasonably requested by the Administrative Agent, a Phase II) environmental report for such property, and (C) such other reports or certifications as related to such Eligible Borrowing Base Real Estate as the Administrative Agent may reasonably request;
(xxiv) Landlord Waivers, if any, that have been received by the Company or any Subsidiary on or prior to the Closing Date;
(xxv) copies of any executed Service Loaner Intercreditor Agreement with respect to any Permitted Service Loaner Indebtedness and the Financial StatementsFMCC Intercreditor Agreement; in each case as in effect as the date hereof, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred if required pursuant to in Section 5.09the terms hereof, any additional Service Loaner Intercreditor Agreements;
(xxvi) a completed environmental questionnaire covering all Loan Parties’ properties (whether leased or owned);
(xxvii) a form FR U-1 executed by the Company and a duly authorized representative of the Administrative Agent; and
(xivxxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, any L/C Issuer, the Revolving Swing Line Lender, the New Vehicle Floorplan Swing Line Lender, the Used Vehicle Floorplan Swing Line Lender or the Required Lenders reasonably may require.
(b) (i) Upon the reasonable request of any Lender made at least ten (10) days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least five (5) Business Days prior to the Closing Date and (ii) at least five (5) Business Days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
(c) Any fees required to be paid on or before the Closing Date shall have been paid.
(cd) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company shall have paid all accrued fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. 118 Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation effectiveness of each Lender this Agreement and the obligations of the Lenders and L/C Issuers to make the their initial Credit Extension Extensions hereunder on the Closing Date is are subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Security Agreement, the Guaranty Amendment, the Pledge Agreement Amendment and the Guaranties, Reaffirmation Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrower Agent;
(ii) Notes a Note executed by the Borrowers in favor of each Lender requesting Notesa Note;
(iii) the certificate such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications from the Secretary of State (or comparable public officialsimilar, applicable Governmental Authority) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request require to evidence that each Loan Party is duly organized or formed, and otherwise that each Loan Party is validly existing, in form good standing and substance satisfactory qualified to engage in business in its state of incorporation, formation or organization, and each state in which its principal offices are located, as the case may be, as of a recent date;
(v) (A) favorable opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, New York counsel to the Loan Parties, addressed to the Administrative Agent:
, each L/C Issuer and each Lender, as to the matters set forth in Exhibit H-1, (1ii) CBass, ▇▇▇▇▇ & ▇▇▇▇ PLC, Tennessee counsel to the Loan Parties, addressed to the Administrative Agent, each L/C Issuer and each Lender, as to the matters set forth in Exhibit H-2, (iii) Vorys, ▇▇▇▇▇, M▇▇▇▇▇-▇▇ & ▇▇▇▇▇ LLP, Ohio counsel to the Loan Parties, addressed to the Administrative Agent, each L/C Issuer and each Lender, as to the matters set forth in Exhibit H-3, (iv) Law Offices of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Colt & Mosle LLPLLC, U.S. Surface Transportation Board counsel for FIL to the Loan Parties, as to matters set forth in Exhibit H-4, and its Subsidiaries;
(2v) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇ ▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL to the Loan Parties, addressed to the Administrative Agent, each L/C Issuer and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányieach Lender, Hungarian counsel for FIL and its Subsidiariesas to the matters set forth in Exhibit H-5;
(viiivi) (A) the unaudited balance sheets as of July 31, 2009 and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on consolidated bases for Borrowers and Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Borrower Agent as prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments and the absence of footnotes, and (ii) the projections of Borrowers and the Subsidiaries for the period of August 1, 2009 through December 31, 2012 (presented on a monthly basis for the period of August 1, 2009 through December 31, 2010 and on an annual basis thereafter) evidencing Borrowers’ ability to comply with the financial covenant set forth in Section 7.12;
(vii) a certificate of a Responsible Officer of each Loan Party either certifying that all Governmental Approvals and all consents of other Persons, in each case that are necessary or advisable (Aincluding, without limitation, the necessary consents of the Existing Lenders to amend and restate the Existing Credit Agreement) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance transactions contemplated by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals each of the foregoing shall be in full force and effect;
(viii) a certificate signed by a Responsible Officer of each Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, or and (B) stating that there has been no such consentsevent or circumstance since March 31, licenses 2009 that has had or approvals are so requiredcould be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) a certificate signed by a Responsible Officer of the Company each Borrower certifying that such Borrower is Solvent;
(A) that delivery to the conditions specified Administrative Agent of the certificates, if any, evidencing the Equity Interests in Section 4.01(e) and Section 4.02(a) have been satisfiedthe Borrowers’ Subsidiaries pledged under the Pledge Agreement on the Closing Date, together with undated stock powers duly executed in blank with respect thereto, (B) no Acquired Business Material Adverse Effect has occurred delivery to the Administrative Agent of a Global Intercompany Note executed by and among the Borrowers and their respective Subsidiaries, accompanied by instruments of transfer undated and endorsed in blank and (C) the current Debt Ratings;
(x) evidence that (1) the Solectron Credit Agreement has been acknowledgments of all filings or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled recordations necessary or defeased in a manner satisfactory desirable to perfect the Administrative Agent’s Liens in the Collateral, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released as well as UCC and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) Lien searches and other evidence satisfactory to the Administrative Agent that such Liens are the Obligations only Liens upon the Collateral (other than as expressly permitted by the Collateral Documents);
(xi) duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, reasonably satisfactory to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated IndenturesAdministrative Agent;
(xii) (A) copies of policies or certificates of insurance for the executed copy of insurance policies carried by Borrowers, all in compliance with the Acquisition Agreement Loan Documents and all other related documentation (without amendmentB) the Insurance Assignment required under Section 6.07, modification or waiver thereof which is adverse in form and substance reasonably satisfactory to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct all field examinations, Equipment Appraisals and complete copies such other reports, audits or certifications as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent;
(xiv) such documentation and evidence as the Administrative Agent may reasonably request in order for it to carry out all “know your customer” or other checks (including checks with the Office of Foreign Assets Control of the Financial StatementsU.S. Treasury Department) in relation to the identify of the Borrowers and their officers, Closing Date Pro Forma Consolidated Balance Sheet that it is required to carry out in relation to the transactions contemplated by this Agreement, and Projections referred to in Section 5.09the Administrative Agent shall be satisfied with the results of all such “know your customer” or other checks;
(xv) a Borrowing Base Certificate based on July 31, 2009 accounting records; and
(xivxvi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuers, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Each Borrower shall have obtained all Governmental Approvals and all consents of other Persons, in each case that are necessary or advisable (including, without limitation, the necessary consents of the Existing Lenders to amend and restate the Existing Credit Agreement) in connection with the transactions contemplated by the Loan Documents and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to the Administrative Agent.
(c) There shall be no any action, suit, investigation or proceeding pending or, to the knowledge of the Borrowers, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(d) Any fees required to be paid on or before the Closing Date shall have been paid.
(ce) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such reasonable fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrowers and the Administrative Agent).
(df) Evidence The Closing Date shall have occurred on or before August 31, 2009.
(g) Upon giving effect to (i) all fees and expenses incurred in connection herewith that are required to be paid on or before the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained the prepayment of the Existing Loans with the remaining proceeds of the refund from SAP America, Inc. received in each other Loan Document or in any document furnished at any time under or in connection herewith or therewithJune 2009, Availability shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loansat least $20,000,000. Without limiting the generality of the provisions of the last paragraph of Section 9.0310.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Companyother Loan Document;
(ii) Notes as to each Borrower, a Note executed by the Borrowers such Borrower in favor of each Lender requesting Notes;
(iii) searches of filings made under the certificate UCC, the PPSA, the Bank Act (Canada) or other applicable Law, in each case in the jurisdiction of incorporation (or comparable document) formation of each Loan Party certified and each other jurisdiction reasonably deemed appropriate by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)Agent;
(iv) to such UCC and PPSA financing statements or similar documents required under any other applicable Law in the extent such jurisdiction has the legal concept name of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its for each appropriate jurisdiction of organization (oras is necessary, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as in the Administrative Agent may request Agent’s reasonable discretion, to establish that such Person is duly qualified to do business and perfect the Administrative Agent’s security interest in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)Collateral;
(v) a certificate all certificates evidencing any certificated Equity Interests pledged to the Administrative Agent pursuant to the Security Agreements, together with duly executed in blank, undated stock powers attached thereto (unless, with respect to the pledged Equity Interests of any Non-U.S. Subsidiary, such stock powers are deemed unnecessary by the Administrative Agent in its reasonable discretion under the law of the secretary or an assistant secretary (or comparable officer) or a director jurisdiction of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation organization of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) searches of the secretary or an assistant secretary (or comparable officer) or a director ownership of, and ▇▇▇▇▇ on, United States and Canadian intellectual property registrations and applications of each Loan Party certifying in the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate)appropriate governmental offices;
(vii) favorable written opinions from each duly executed notices of grant of security interest in the form required by the Security Agreements as are necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the United States and Canadian intellectual property registrations and applications of the following counsel for the Borrowers and FIL’s SubsidiariesLoan Parties;
(viii) such certificates of resolutions or other action, addressed to the Administrative Agent for the benefit incumbency certificates and/or other certificates of the Administrative Agent and the Lenders, covering such legal matters Responsible Officers of each Loan Party as the Administrative Agent may reasonably request require evidencing the identity, authority and otherwise capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in form connection with this Agreement and substance satisfactory the other Loan Documents to which such Loan Party is a party; CHAR1\1982698v3
(ix) such documents and certifications as the Administrative Agent:Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrowers and the Restricted Subsidiaries is validly existing and in good standing in its jurisdiction of organization or formation;
(1x) Ca favorable opinion of each of (A) ▇▇▇▇▇, M▇ & ▇▇▇▇▇-▇ ▇▇▇▇ ▇▇▇▇▇▇▇, Colt & Mosle ▇ LLP, U.S. counsel for FIL and its Subsidiaries;
to the Loan Parties, (2B) P▇▇▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel to the Loan Parties and (C) local counsel to the Loan Parties in each other jurisdiction for FIL which the Administrative Agent has requested a legal opinion, in each case addressed to the Administrative Agent and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányieach Lender, Hungarian counsel for FIL as to such matters concerning the Loan Parties and its Subsidiariesthe Loan Documents as the Administrative Agent may reasonably request;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixxi) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Section 4.01(eSections 4.01(b), 4.01(c), 4.02(a) and Section 4.02(a4.02(b) have been satisfiedsatisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xii) a certificate signed by the chief financial officer of the Company certifying that the Company and its Subsidiaries are Solvent on a consolidated basis after giving effect to the Credit Extensions to be made hereunder on the Closing Date;
(xiii) a perfection certificate in form and substance reasonably satisfactory to the Administrative Agent and signed by a Responsible Officer of the Company;
(xiv) evidence reasonably satisfactory to the Administrative Agent that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and
(xv) copies of (A) the audited consolidated balance sheets of the Company and its Subsidiaries for the fiscal years ended December 31, 2015, 2016 and 2017, and the related consolidated statements of operations, comprehensive income, changes in equity and cash flows for such fiscal years of the Company and its Subsidiaries, including the notes thereto, (B) no Acquired Business Material Adverse Effect has occurred unaudited consolidated financial statements of the Company and its Subsidiaries for each fiscal quarter ending on or after March 31, 2018 and at least sixty (C60) days prior to the current Debt Ratings;Closing Date, including balance sheets and statements of income or operations, shareholders’ equity and cash flows (the “Interim Financial Statements”) and annual projections for the Company and its Subsidiaries for the five (5) full fiscal years ending after the Closing Date.
(xb) evidence that (1) Substantially concurrently herewith, all obligations under the Solectron Existing Credit Agreement shall have been repaid in full (other than contingent indemnification obligations for which no claim or demand has yet been or concurrently with the Closing Date is being made), all commitments thereunder shall have been terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements the same shall have been released (or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments for such release shall have been made;).
(xic) evidence There shall not exist any action, suit, investigation or proceeding pending or, to the knowledge of the Company or any other Loan Party, threatened in writing in any court or before any arbitrator or governmental authority that would reasonably be expected to have a Material Adverse Effect.
(d) The Administrative Agent and the Lenders shall have completed due diligence of the Loan Parties and their respective Subsidiaries in scope, and with results, reasonably satisfactory to the Administrative Agent that and the Obligations Lenders, including OFAC, FCPA and Corruption of Foreign Public Officials Act (Canada).
(e) The Administrative Agent and the Lenders shall have received all documentation and other information with respect to each Loan Party requested in writing at least five (5) CHAR1\1982698v3 Business Days prior to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined Closing Date by the Administrative Agent) Agent that any Lender determines is required by regulatory authorities under applicable Law, including without limitation the prior consent of PATRIOT Act, the Lenders);
(xiii) true correct Canadian AML Acts and complete copies of the Financial Statementsapplicable U.S. and Canadian law regarding anti-money laundering, Closing Date Pro Forma Consolidated Balance Sheet anti-terrorist financing, government sanction and Projections referred to in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require“know your customer” matters.
(bf) Any fees required At least three (3) Business Days prior to be paid on or before the Closing Date Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have been paiddelivered to each Lender that so requests a Beneficial Ownership Certification in relation to such Borrower.
(cg) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company shall have paid (i) all fees and expenses required to be paid on the Closing Date pursuant to the Fee Letter or other writing between or among the Company and any lender(s) and (ii) all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least three (3) Business Days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings and as shall be identified in the invoice provided at least three (3) Business Days prior to the Closing Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Celestica Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantiesAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyToro;
(ii) Notes executed by the Borrowers in favor of each Lender requesting Notes;
(iii) the certificate such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party;
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Loan Party is duly qualified to do business organized or formed, and that each of the Borrowers is validly existing, in good standing under and qualified to engage in business in the laws jurisdiction of such jurisdiction), together with an English translation thereof (if appropriate)its principal place of business;
(v) a certificate consolidated financial statements of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true Toro and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings its Subsidiaries for the dissolution or liquidation fiscal years ended 2001, 2002 and 2003, including balance sheets, income and cash flow statements audited by independent public accountants of recognized national standing and prepared in conformity with GAAP, and such Person, together with a certified English translation thereof (if appropriate)other financial information as the Administrative Agent may request;
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) favorable opinion of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL to the Loan Parties, addressed to the Administrative Agent and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányieach Lender, Hungarian counsel for FIL as to the matters set forth in Exhibit F and its Subsidiariessuch other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viiivii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixviii) a certificate signed by a Responsible Officer of the Company Toro certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, and (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has resulted or could reasonably be expected to result in a Material Adverse Effect has occurred Effect; (C) there does not exist any pending or threatened action, suit, investigation or proceeding in any court or before any arbitrator or Governmental Authority that purports to affect any transaction contemplated under this Agreement or any Loan Document or the ability of any Borrower to perform its respective obligations under this Agreement or any Loan Document; and (CD) the current Debt Ratings;
(ix) a duly completed Compliance Certificate as of the last day of the fiscal quarter of Toro most recently ended prior to the Closing Date, signed by a Responsible Officer of Toro;
(x) evidence that (1) the Solectron Existing Credit Agreement has been or concurrently with the Closing Date is being terminated terminated, all indebtedness thereunder has been paid and satisfied in full and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens if any securing obligations under such credit agreements the Existing Credit Agreement have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09released; and
(xivxi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Toro shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Toro and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Toro Co)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantiesGuaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
(ii) Notes a Note executed by the Borrowers in favor of each Lender requesting Notesa Note;
(iii) the certificate such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party;
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters certifications as the Administrative Agent may reasonably request require to evidence that each Loan Party is duly organized or formed, and otherwise that each Loan Party is validly existing, in form good standing and substance satisfactory qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the Administrative Agent:extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(1v) Cfavorable opinions of ▇▇▇▇▇, M▇ ▇▇▇▇▇-▇▇ ▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore P.C., U.S. counsel for FIL to the Loan Parties and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B& ▇▇▇▇▇▇▇▇ LLP, Canadian Dutch counsel for FIL to the Loan Parties, addressed to the Administrative Agent and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányieach Lender, Hungarian counsel for FIL as to the matters set forth in Exhibit G and its Subsidiariessuch other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viiivi) a certificate of a Responsible Officer of each Loan Party the Company either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such each Loan Party and the validity against such each Loan Party of the Loan Documents to which it each such Loan Party is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixvii) a certificate signed by a Responsible Officer of the Company certifying (A) that there has been no event or circumstance since January 28, 2011 that has had or could be reasonably expected to have, either individually or in the conditions specified in Section 4.01(e) aggregate, a Material Adverse Effect and Section 4.02(a) have been satisfied, (B) that there is no Acquired Business action, suit, investigation or proceeding pending or, to the knowledge of the Company, threatened in writing in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect has occurred and (C) the current Debt Ratings;Effect.
(xviii) evidence that (1) all insurance required to be maintained pursuant to the Solectron Credit Agreement Loan Documents has been or concurrently with the Closing Date obtained and is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09effect; and
(xivix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Co-Lead Arrangers, the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, each Security Document, each Guaranty and the Guarantiesany other applicable Loan Documents, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note;
(iii) the certificate such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party;
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of incorporation or formation and, to the extent request by the Administrative Agent, each other jurisdiction where it is qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)business;
(v) a certificate favorable opinion of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of counsel to the Loan Documents to be executed by such Person Parties (other than Harlingen Partnership Holdings, Inc., MedCath Cardiology Consulting & Management, Inc., San Antonio Holdings, Inc. and the consummation of the transactions contemplated thereby and (ii) designate the officersVenture Holdings, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriateInc.);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for and each Lender, as to the benefit of matters set forth in Exhibit H and such other matters concerning the Administrative Agent Loan Parties and the Lenders, covering such legal matters Loan Documents as the Administrative Agent Required Lenders may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiariesrequest;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viiivi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixvii) a certificate signed by a Responsible Officer of the Company Parent and the Borrower certifying (A) that there has been no event or circumstance since the conditions specified date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in Section 4.01(e) and Section 4.02(a) have been satisfiedthe aggregate, (B) no Acquired Business a Material Adverse Effect has occurred and (C) the current Debt RatingsEffect;
(xviii) evidence that (1) all insurance required to be maintained pursuant to the Solectron Credit Agreement Loan Documents has been or concurrently with the Closing Date obtained and is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09effect; and
(xivix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee Letter, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Medcath Corp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies electronic copies (followed promptly by originals, if and to the extent required by this Agreement) unless otherwise specified, each (in the case of Instruments to be signed by the Borrower) properly executed by a Responsible Officer of the signing Loan Party (as applicable)Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) ), and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantiesAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrower;
(ii) Notes a signed original of a Note executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note;
(iii) the certificate such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate Responsible Officers of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters Borrower as the Administrative Agent may reasonably request require evidencing the identity, authority and otherwise capacity of each Responsible Officer of the Borrower authorized to act as a Responsible Officer in form connection with this Agreement and substance satisfactory the other Loan Documents to which the Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in the State of Iowa;
(v) from Sidley Austin LLP, special counsel for the Borrower, a favorable opinion addressed to the Administrative Agent:
(1) CAgent and each Lender as to the matters set forth in Part A of Exhibit E, and from ▇▇▇▇ ▇▇, M▇▇▇▇▇-▇. ▇▇▇▇▇▇, Colt & Mosle LLPEsq., U.S. counsel for FIL Chief Development Officer, General Counsel and its SubsidiariesSecretary of the Borrower, a favorable opinion addressed to the Administrative Agent and each Lender as to the matters set forth in Part B of Exhibit E, and, in each case, covering such other matters incident to the transactions contemplated hereby as the Administrative Agent may reasonably request;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viiivi) a certificate of a Responsible Officer of each Loan Party the Borrower either (A) attaching copies of all material consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party the Borrower and the validity against such Loan Party the Borrower of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;; and
(ixvii) a certificate signed by a Responsible Officer of the Company Borrower certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a), (b) and Section 4.02(a(c) have been satisfied, (B) that there has been no Acquired Business event or circumstance since June 30, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred Effect, and (C) the current Debt Ratings;
(x) evidence that (1) the Solectron Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each calculation of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee Letter, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and Leverage Ratio as of the Closing Date, except such Consolidated Leverage Ratio to be calculated on the basis of (1) the Consolidated Total Debt of the Borrower and its Subsidiaries as of the Closing Date after giving pro forma effect to all Credit Extensions to be made on the Closing Date, and (2) the Consolidated EBITDA of the Borrower and its Subsidiaries for the then most recently ended period of four (4) consecutive Fiscal Quarters for which financial information of the Borrower has been furnished by the Borrower to the extent that such representations Administrative Agent and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and Lenders.
(b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the The Administrative Agent shall have received notice from such Lender prior confirmed (i) receipt of all accrued and unpaid interest and fees payable to the proposed Lenders under the Existing Credit Agreement as of the Closing Date, and (ii) that all Lenders under the Existing Credit Agreement that are not Lenders under this Agreement shall have received payment of an amount equal to 100% of the outstanding principal of its Loans (as defined under the Existing Credit Agreement) and L/C Advances (as defined under the Existing Credit Agreement) and all other amounts payable to it under the Existing Credit Agreement as of the Closing Date specifying its objection thereto(including any amounts under Section 3.05 of the Existing Credit Agreement).
Appears in 1 contract
Sources: Credit Agreement (Meredith Corp)
Conditions of Initial Credit Extension. The obligation of each the Lender to make the any initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative AgentLender’s receipt of the following, each of which shall following items (except those items that are permitted to be originals or telecopies (followed promptly by originals) unless otherwise specifieddelivered after the Closing Date pursuant to Section 5.03), each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent Lender and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement and each of the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanySecurity Instruments;
(ii) Notes Revolving Loan Note(s) executed by the Borrowers in favor of each the Lender requesting Notesif the Lender requests a Revolving Loan Note(s);
(iii) the certificate such certificates of incorporation resolutions or other action, incumbency certificates (or comparable document) including specimen signatures), and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent Lender may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party;
(iv) such documents and certifications as the Lender may reasonably require to the extent such jurisdiction has the legal concept of a corporation being evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and a Governmental Authority qualified to engage in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of business in its jurisdiction of organization (ororganization, if any such Person is organized under the laws including certified copies of any jurisdiction outside the United Stateseach Loan Party’s Organization Documents, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in shareholders’ agreements, certificates of good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)and/or qualification to engage in business from each jurisdiction identified on Schedule 5.01 hereto;
(v) a certificate favorable opinion of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇ ▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL to the Loan Parties, and appropriate local counsel to the Loan Parties, each addressed to the Lender and its successors and assigns, as to the matters concerning the Loan Parties and the Loan Documents as the Lender may reasonably request;
(vi) [Reserved];
(vii) a certificate of Responsible Officers of the Borrower Agent certifying that the Company and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇on a Consolidated basis, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiariesare Solvent;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party audited financial statements of the Loan Documents to which it is a partyCompany and its Subsidiaries for each of the three fiscal years immediately preceding the Closing Date, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consentsunaudited interim financial statements for the Company and its Subsidiaries as of December 31, licenses or approvals are so required2024, and (C) financial projections of the Company and its Subsidiaries for the next three (3) fiscal years;
(ix) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Section 4.01(e) and Section 4.02(a) have been satisfied, (B) no Acquired Business Material Adverse Effect has occurred and (C) the current Debt Ratings[Reserved];
(x) evidence that (1) all insurance required to be maintained pursuant to the Solectron Credit Agreement Loan Documents has been or concurrently with the Closing Date obtained and is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been madeeffect;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indenturesan initial Borrowing Base Certificate;
(xii) the executed copy an initial written notice of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders)Borrowing;
(xiii) true correct delivery of Uniform Commercial Code financing statements, suitable in form and complete copies substance for filing in all places required by applicable Law to perfect the Liens of the Financial StatementsLender under the Security Instruments as to items of Collateral in which a security interest may be perfected by the filing of financing statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Lender under such Security Instruments in Section 5.09; andand to such other Collateral as the Lender may require;
(xiv) Uniform Commercial Code search results showing only those Liens as are acceptable to the Lender;
(xv) evidence satisfactory to the Lender of the consummation (in compliance with all applicable Laws and regulations, with the receipt of all material governmental, shareholder and third-party consents and approvals relating thereto) of the Transactions;
(xvi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders Lender may reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee Letter, the Company The Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) Lender to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such reasonable fees, charges and disbursements as shall constitute its reasonable estimate of such reasonable fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrowers and the Administrative AgentLender).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(ec) The representations and warranties of Lender shall be satisfied that after giving effect to (i) the Borrowers contained in Article V and initial Credit Extension hereunder, (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or consummation of the Transactions and payment of all fees and expenses in connection herewith or therewiththerewith and (iii) any payables stretched beyond their customary payment practices, Availability shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoat least $10,000,000.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction or waiver in accordance with Section 11.01 of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Third Restatement Date (or, in the case of certificates of governmental officials, a recent date before the Closing Third Restatement Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:):
(i) executed counterparts of this Agreement and the GuarantiesAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrowers, unless otherwise agreed;
(ii) Notes a Note executed by the Borrowers in favor of Bank of America and each other Lender requesting Notesa Note;
(iii) the Ancillary Document Confirmations;
(iv) completed requests for information, dated on or before the date of the initial Credit Extension, listing all other effective financing statements filed in all jurisdictions that the Administrative Agent may deem necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement that name any Loan Party as debtor, together with copies of such financing statements as have been filed since the Original Closing Date;
(v) [reserved];
(vi) a certificate of an authorized officer of each Loan Party, attaching: (a) either (x) a copy of the articles or certificate of incorporation (or comparable document) of each such Loan Party certified as of a recent date by the Secretary of State of the state of organization (or comparable public officialofficial in the United Kingdom and Canada) of its jurisdiction such Loan Party or (y) a certification by a Responsible Officer of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, Loan Party that no changes have been made to such other evidence as articles or certificate since they were last provided to the Administrative Agent may request to establish that such Person is duly organized and existing under the laws of such jurisdiction)Agent, in either case, together with an English translation thereof (if appropriate);
(iv) certificates of such official attesting to the extent such jurisdiction has the legal concept of a corporation being in valid existence, good standing and a Governmental Authority qualification to engage in business in such Loan Party’s jurisdiction issues any evidence of such good standing, a Certificate of Good Standing organization; (b) either (x) the bylaws or operating agreement (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any equivalent such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdictionconstitutional document), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) as applicable, of such Loan Party as in effect on the date of such certification or (ory) a certification by a Responsible Officer of such Loan Party that no changes have been made to such bylaws or operating agreement since they were last provided to the Administrative Agent; and (c) such certificates of resolutions or other action, if any incumbency and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (a party or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents is to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate)party;
(vii) a favorable written opinions from each opinion of Ropes & ▇▇▇▇ LLP, counsel to the following counsel for the Borrowers and FIL’s SubsidiariesLoan Parties, addressed to the Administrative Agent for and each Lender, as to such matters concerning the benefit of the Administrative Agent Loan Parties and the Lenders, covering such legal matters Loan Documents as the Administrative Agent may reasonably request and otherwise request, in form and substance reasonably satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viii) a certificate favorable opinion of a Responsible Officer local counsel to the Loan Parties in each jurisdiction of each organization of any Loan Party either (A) attaching copies of all consentsrequested by the Administrative Agent, licenses addressed to the Administrative Agent and approvals required in connection with each Lender, as to such matters concerning the execution, delivery Loan Parties and performance by such Loan Party and the validity against such Loan Party of the Loan Documents as the Administrative Agent may reasonably request, in form and substance reasonably satisfactory to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so requiredthe Administrative Agent;
(ix) the Security Agreement, duly executed by each Loan Party;
(x) [reserved];
(xi) a certificate certificate, substantially in the form of Exhibit K, signed by a Responsible Officer of the Company Lead Borrower certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, and (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had, either individually or in the aggregate, a Material Adverse Effect has occurred and (C) the current Debt Ratings;
(x) evidence that (1) the Solectron Credit Agreement has been or concurrently with is continuing on the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated IndenturesDate;
(xii) a certificate, substantially in the executed copy form of Exhibit L, from Holdings attesting to the Solvency of the Acquisition Agreement Loan Parties and all other related documentation (without amendment, modification or waiver thereof which is adverse their Subsidiaries on a consolidated basis before and after giving effect to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders)Transaction, from its chief financial officer or other Responsible Officer;
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders any Lender reasonably may require.
(bi) Any All fees required to be paid to the Administrative Agent and the Arrangers on or before the Closing Third Restatement Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Third Restatement Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent required to be paid on the Third Restatement Date and invoiced at least one (1) Business Day prior to or on the Closing Third Restatement Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrowers and the Administrative Agent).
(di) Evidence that Upon the Closing Date Transaction reasonable request of any Lender made at least ten (10) days prior to the Third Restatement Date, the Borrowers shall have been consummated substantially concurrently provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Closing Date on the terms set forth Act, in the Acquisition Agreement each case at least three (without amendment, modification or waiver thereof which is adverse 3) days prior to the Lenders Third Restatement Date, and (ii) at least three (3) days prior to the Third Restatement Date, any Borrower that qualifies as reasonably determined by a “legal entity customer” under the Administrative Agent) without the prior consent of the Lenders)Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower.
(e) The representations Administrative Agent shall have received evidence in form and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except substance reasonably satisfactory to the extent Administrative Agent that such representations and warranties specifically refer all action that the Administrative Agent may deem necessary or desirable in order to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as perfect the case may be, as of such earlier date; provided that (x) Liens created under the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any LoansSecurity Agreement has been taken. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Third Restatement Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Novanta Inc)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:precedent (provided that the delivery of any document or the performance of any obligation required to be delivered or performed under Section 6.18 shall not be a condition precedent to the initial Credit Extensions on the Closing Date):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)or the General Partner acting on behalf of such Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement executed by the Borrowers and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyGuarantor;
(ii) Notes a Note executed by the Borrowers in favor of each Lender requesting Notesa Note;
(iii) the certificate Security Agreement, executed by the Borrowers, each Guarantor and the Collateral Agent; - 82 - NAI-1535672020v11535672020v8
(iv) the IP Security Agreements, executed by each Loan Party party thereto and the Collateral Agent;
(v) the Pledge Agreement, executed by the Borrowers, each Guarantor and the Collateral Agent;
(vi) such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by or the Secretary General Partner acting on behalf of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence each Loan Party as the Administrative Agent may request to establish that such Person is duly organized require evidencing the identity, authority and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any Documents to which such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (a party or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents is to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate)party;
(vii) favorable written opinions from each of the following counsel for the Borrowers such documents and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters certifications as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory require to evidence that each Loan Party is duly organized or formed, and, to the Administrative Agent:
(1) C▇▇▇▇▇extent available for entities validity existing and in good standing in such jurisdiction, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL that each Borrower and each Guarantor is validly existing and in good standing in its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiariesjurisdiction of organization or formation;
(viii) a certificate favorable opinion of a Responsible Officer of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P. as counsel to the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and each Lender, as to the matters concerning the Loan Party either (A) attaching copies of all consents, licenses Parties and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so requiredas the Required Lenders may reasonably request;
(ix) the Administrative Agent, the Arrangers and the Lenders shall have received three (3) Business Days prior to the Closing Date so long as such documentation and information has been reasonably requested in writing by the Administrative Agent, the Arrangers, and the Lenders at least seven (7) business days prior to the Closing Date, all documentation and other information about the Borrowers and the Guarantors that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act;
(x) a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to the execution and delivery of the Loan Documents, any Credit Extension to be made on the Closing Date, from the chief financial officer of the General Partner;
(xi) a certificate signed by a Responsible Officer of the Company Partnership certifying (A) that the conditions specified in Section 4.01(eSections 4.01(d) and Section 4.02(a) and (b) have been satisfied, (B) no Acquired Business Material Adverse Effect has occurred and (C) the current Debt Ratings;
(x) evidence that (1) the Solectron Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;; and
(xii) evidence that all insurance required to be maintained pursuant to the executed copy Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Collateral Agent, on behalf of the Acquisition Agreement and Secured Parties, as an additional insured or loss payee, as the case may be, under all other related documentation (without amendment, modification or waiver thereof which is adverse insurance policies maintained with respect to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent assets and properties of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may requireLoan Parties that constitutes Collateral.
(bi) Any All fees required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least two (2) Business Days prior to the Closing Date (or on the Closing Date, if agreed by the Borrowers), plus such additional amounts of such fees, charges and - 83 - NAI-1535672020v11535672020v8 disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrowers and the Administrative Agent).
(d) Evidence Since December 31, 2018, there shall not have occurred any event, condition or occurrence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendmenthas had, modification or waiver thereof which is adverse reasonably expected to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders)have, a Material Adverse Effect.
(e) The representations All Loans outstanding under the Existing Credit Agreement shall have been repaid, and warranties all accrued but unpaid interest, commitment fees, and other amounts outstanding thereunder shall have been paid in full; provided that, for the avoidance of (i) doubt, Letters of Credit issued and outstanding under the Borrowers contained in Article V Existing Credit Agreement shall remain outstanding as Letters of Credit hereunder and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in subject to and governed by the case of representations terms and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loansconditions hereof. Without limiting the generality of the provisions of the last paragraph of Section 9.039.03(c), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (CrossAmerica Partners LP)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantiesAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyCompany and, if Advance Funding Arrangements shall exist with respect to funding on the Closing Date, executed Advance Funding Documentation in form and number reasonably acceptable to the Administrative Agent;
(ii) Notes executed by the Borrowers in favor of each Lender requesting Notes;
(iii) the certificate such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party or is to be a party;
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Loan Party is duly qualified to do business organized or formed, and that Loan Party is validly existing, in good standing under (or equivalent concept, as, and to the laws extent, applicable, in the relevant jurisdiction) and qualified to engage in business in its jurisdiction of such jurisdiction), together with an English translation thereof (if appropriate)formation or incorporation and each other jurisdiction reasonably requested by the Administrative Agent;
(v) a certificate favorable opinion of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or▇▇▇▇ LLP, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of counsel to the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s SubsidiariesParties, addressed to the Administrative Agent for the benefit of and each Lender, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, covering such legal matters relating to the Loan Documents and the transactions contemplated thereby as the Administrative Agent may and the Lenders shall reasonably request and otherwise such opinion shall expressly allow permitted successors and assigns of the Administrative Agent and the Lenders to rely on such opinion;
(vi) a favorable opinion of Stek Advocaten B.V., special counsel to the Administrative Agent, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent:Agent and the Lenders, covering such matters relating to the Loan Documents and the transactions contemplated thereby as the Administrative Agent and the Lenders shall reasonably request;
(1vii) Ca favorable opinion of ▇▇▇▇▇ & ▇▇▇▇▇, M▇▇▇ Amsterdam N.V., counsel to PAREXEL International Holding B.V., addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, covering such matters relating to the Loan Documents and the transactions contemplated thereby as the Administrative Agent and the Lenders shall reasonably request;
(viii) a favorable opinion of ▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLPcounsel to PAREXEL International (IRL) Limited, U.S. counsel for FIL addressed to the Administrative Agent and its Subsidiarieseach Lender, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, covering such matters relating to the Loan Documents and the transactions contemplated thereby as the Administrative Agent and the Lenders shall reasonably request;
(2ix) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ Ba favorable opinion of ▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian special counsel for FIL to the Administrative Agent, addressed to the Administrative Agent and its Subsidiarieseach Lender, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, covering such matters relating to the Loan Documents and the transactions contemplated thereby as the Administrative Agent and the Lenders shall reasonably request;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixx) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, satisfied and (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had, either individually or in the aggregate, a Material Adverse Effect has occurred and (C) the current Debt Ratings;
(x) evidence that (1) the Solectron Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been madeEffect;
(xi) evidence satisfactory certificate of a Financial Officer the Company, certifying that the Company is, and the Company and its Subsidiaries on a consolidated basis are, Solvent both before and after giving effect to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated IndenturesTransactions;
(xii) the executed copy a certificate signed by a Responsible Officer of PAREXEL International (IRL) Limited regarding Section 239 of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders Irish Companies Act 2014 (as reasonably determined amended) and (b) a certificate signed by the Administrative Agenta Responsible Officer of PAREXEL International (IRL) without the prior consent Limited confirming that none of the Lenders);
(xiii) true correct and complete copies proceeds of the Financial StatementsLoans and none of the Letters of Credit have been used, Closing Date Pro Forma Consolidated Balance Sheet will be used, is being used or will be used at any time in any way which would constitute “financial assistance” within the meaning of, and Projections referred to as prohibited by Section 82 of the Irish Companies ▇▇▇ ▇▇▇▇ (as amended) (“Section 82”) or which would result in the Loan Documents (including without limitation the collateral, guarantees and indemnities thereby created) contravening Section 5.0982; and
(xivxiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders any Lender reasonably may require.
(bi) Any All fees required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
, (cii) Unless all fees required to be paid to the Lenders on or before the Closing Date shall have been paid and (iii) unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent).
(c) to the extent invoiced prior All accrued interest, fees and other charges to the Closing DateDate under the Existing Credit Agreement shall have been paid to the Administrative Agent for the account of the Lenders, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company L/C Issuer and the Administrative Agent)Swing Line Lender.
(d) Evidence The Arrangers shall have received all documentation and other information that the Closing Date Transaction shall have been consummated substantially concurrently Arrangers may reasonably request in order to comply with any applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any LoansPATRIOT Act. Without limiting the generality of the provisions of the last paragraph of Section 9.03, (i) for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretothereto and (ii) in the event that Advance Funding Arrangements shall exist, the delivery by any Lender (x) of funds pursuant to such Advance Funding Arrangements (“Advance Funds”) and (y) its signature page to this Agreement shall constitute the request, consent and direction by such Lender to the Administrative Agent (unless expressly revoked by written notice from such Lender received by the Administrative Agent prior to the earlier to occur of funding or the Administrative Agent’s declaration that this Agreement is effective) to withdraw and release to the Borrowers on the Closing Date the applicable funds of such Lender to be applied to the funding of Loans by such Lender in accordance with Section 2.02 upon the Administrative Agent’s determination (made in accordance with and subject to the terms of this Agreement) that it has received all items expressly required to be delivered to it under this Section 4.01.
Appears in 1 contract
Conditions of Initial Credit Extension. The occurrence of the Closing Date, the initial effectiveness of this Agreement and obligation of each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, (as applicableor such Loan Party’s sole or managing member, manager, development manager, general partner, or other comparable constituent entity), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantiesAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note;
(iii) the certificate of incorporation (or comparable document) of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such Organization Documents and other evidence as the Administrative Agent may request to establish that such Person is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies certificates of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viii) a certificate incumbency certificates and/or other certificates of a Responsible Officer of each Loan Party either (Aor such Loan Party’s sole or managing member, manager, development manager, general partner, or other comparable constituent entity) attaching copies as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of all consents, licenses and approvals required each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the execution, delivery and performance by other Loan Documents to which such Loan Party is a party;
(iv) such other documents and certifications as the validity against such Administrative Agent may reasonably require to evidence that each Loan Party is validly existing, in good standing and qualified to engage in business in the jurisdiction of its incorporation or organization;
(v) the favorable opinions of King & Spalding LLP, counsel to the Loan Parties, and local counsel to the Loan Parties, acceptable to the Administrative Agent addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the 56718230_5 Administrative Agent, covering enforceability of the Loan Documents and other customary matters to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so requiredagreed upon;
(ixvi) a certificate signed by a Responsible Officer of the Company Borrower certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred Effect; and (C) the current Debt Ratingscalculation of the Consolidated Leverage Ratio as of March 31, 2014;
(xvii) evidence that (1) the Solectron Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters a duly completed Compliance Certificate as of credit thereunder cancelled or defeased in March 31, 2014, signed by a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each Responsible Officer of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09Borrower; and
(xivviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuers, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Administrative Agent, the Arrangers or any other Lender (whether pursuant to the Fee Letter or otherwise) on or before the Closing Date shall have been paidpaid (including, without limitation, in respect of breakage or redeployment costs incurred in connection with prepayments).
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrower shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs of the Administrative Agent as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrower and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers Loan Parties contained in Article V and (ii) each or any other Loan Party Document, or which are contained in each any other Loan Document or in any document furnished at any time under or in connection herewith or therewiththis Agreement, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects (except, if a qualifier relating to materiality or Material Adverse Effect or a similar concept already applies, such representation or warranty shall be required to be true and correct in all respects, in each case ) on and as of the Closing Date.
(e) No Default shall exist and be continuing as of the Closing Date.
(f) There shall not have occurred a material adverse change since December 31, except to 2013 in the extent that such representations business, assets, liabilities (actual or contingent), operations or financial condition of the Borrower and warranties specifically refer to an earlier dateits Consolidated Entities taken as a whole.
(g) There shall not exist any action, suit, investigation, or proceeding, pending or threatened, in which case they any court or before any arbitrator or governmental authority that purports to affect the Borrower, its Consolidated Entities or any transaction contemplated hereby, or that would reasonably be expected to have a Material Adverse Effect.
(h) The Borrower and its Consolidated Entities shall be true in compliance with all existing financial obligations and correct Contractual Obligations, the failure to comply with which would reasonably be expected to have a Material Adverse Effect. 56718230_5
(i) The Existing Indebtedness has been (or true and correct in all material respects, as the case may will be, as of such earlier date; provided that (xsimultaneously with closing hereunder) the representations repaid and warranties contained satisfied in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) full and (b) of Section 6.01 and (y) the accuracy all lending commitments in respect of the representation and warranty set forth in Section 5.19(aExisting Indebtedness have been terminated.
(j) shall The Loan Documents must not be a condition precedent to the funding violate any provision of applicable laws, constitutive documents, orders of any Loans. Without limiting the generality of Governmental Authority, the provisions of any material agreement to which any Loan Party may be subject or result in the last paragraph creation or imposition of Section 9.03, for purposes any Lien on the assets or property of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoany Loan Party.
Appears in 1 contract
Conditions of Initial Credit Extension. The effectiveness of this Agreement, and the obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is hereunder, are each subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the followingfollowing (to the extent not previously delivered in connection with the Existing Credit Agreement), each of which shall be originals originals, telecopies or telecopies electronic images (e.g., “pdf” or “tif”) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of (x) certificates of governmental officials, a recent date before the Closing DateDate and (y) documents previously delivered pursuant to the Existing Credit Agreement, the date of the prior delivery thereof) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantiesGuaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note;
(iii) executed counterparts of each Security Instrument to be entered into by any Loan Party (other than the certificate of incorporation BWXT Entities) on the Closing Date (or comparable document) of including any amendment to any Security Instrument), duly executed by each Loan Party certified party thereto, together with:
(A) except to the extent waived by the Secretary Administrative Agent (in which case Section 6.29 shall apply to any matters set forth below that are so waived), certificates representing the certificated Pledged Interests pledged under the Collateral Agreement, and accompanied by undated stock or other transfer powers executed in blank,
(B) proper financing statements (including any amendments to previously filed financing statements) in form appropriate for filing under the Uniform Commercial Code of State all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Collateral Agreement, covering the Collateral described therein,
(C) completed requests for information, dated on or comparable public officialbefore the Closing Date, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of its jurisdiction such financing statements, and
(D) evidence of organization the completion of all other actions, recordings and filings of or with respect to the Security Instruments to be entered into on the Closing Date, or that have been entered into prior to the Closing Date, that the Administrative Agent may deem necessary or desirable in order to perfect, or to confirm or continue the prior perfection of, the Liens created thereby (orincluding receipt of duly executed payoff letters and UCC-3 termination statements, if any), and
(E) except to the extent waived by the Administrative Agent (in which case Section 6.29 shall apply to any such Person is organized under the laws of any jurisdiction outside the United Statesmatters set forth below that are so waived), such other evidence Intellectual Property Security Agreements (including any amendments to previously filed Intellectual Property Security Agreements) as the Administrative Agent may request deem necessary or desirable in order to establish that such Person is duly organized and existing perfect, or provide notice of, the Liens created under the laws of such jurisdiction)Collateral Agreement in intellectual property Collateral, together in form appropriate for filing with an English translation thereof (if appropriate)the United States Patent and Trademark Office or the United States Copyright Office;
(iv) with respect to each of the Mortgaged Properties listed on Schedule 4.01(a)(iv), except to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified waived by the Secretary Administrative Agent (in which case Section 6.29 shall apply to any matters set forth below that are so waived), each of State the following:
(A) evidence that counterparts of the Mortgages, and any amendments thereto to be entered into in connection with this Agreement as reasonably determined by the Administrative Agent, have been duly executed, acknowledged and delivered and are in form suitable for filing or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as recording in all filing or recording offices that the Administrative Agent may request deem necessary or desirable in order to establish that such Person is duly qualified to do business create, confirm or continue a valid first and subsisting Lien on the property described therein in good standing under the laws favor of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Secured Parties, excepting only Liens permitted under the Loan Documents, and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid (or the Borrower has made arrangements satisfactory to the Administrative Agent for payment thereof),
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policy (or policies) (the “Mortgagee Policies”) or marked up unconditional binder for such insurance, or an amendment or update to such policies in place in connection with the Existing Credit Agreement, in each case with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Liens permitted under the Loan Documents,
(C) evidence that all premiums in respect of the Mortgagee Policies have been paid (or the Borrower has made arrangements satisfactory to the Administrative Agent for payment thereof),
(D) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto), and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens (excepting only Liens permitted under the Loan Documents) on the property described in the Mortgages has been taken;
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the Lenders, covering other Loan Documents to which such legal matters Loan Party is a party or is to be a party;
(vi) such documents and certifications as the Administrative Agent may reasonably request require to evidence that each Loan Party is duly organized or formed, and otherwise that each Loan Party is validly existing and in form and substance satisfactory to the Administrative Agent:good standing in its jurisdiction of organization;
(1vii) Ca favorable opinion of (A) ▇▇▇▇▇, M▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties, (B) ▇-▇▇▇▇ ▇▇▇▇▇▇▇, Colt & Mosle LLPGeneral Counsel of the Borrower, U.S. counsel for FIL and its Subsidiaries;
(2C) PVorys, ▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ LLP, local Ohio counsel to certain of the Loan Parties, (D) Jones, Walker, Waechter, Poitevent, Carrère & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & GL.L.P., local Mississippi counsel to certain of the Loan Parties and (E) Beck, Chaet, ▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B& ▇▇▇▇▇▇ LLP▇, Canadian S.C., local Wisconsin counsel for FIL to certain of the Loan Parties (except to the extent to be delivered post-closing in connection with the Mortgaged Property located in Wisconsin pursuant to Section 6.29), in each case addressed to the Administrative Agent and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányieach Lender, Hungarian counsel for FIL in form and its Subsidiariessubstance reasonably satisfactory to the Administrative Agent and the Lenders and addressing such matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viii) a certificate of a Responsible Officer of each Loan Party the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such each Loan Party and the validity against such each Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ix) a certificate signed by a Responsible Officer of the Company Borrower certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, (B) that there has been no Acquired Business event or circumstance since December 31, 2013 that has had or would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred Effect; and (C) to (and providing such backup evidence as may reasonably be requested) the current Debt RatingsRatings from each of ▇▇▇▇▇’▇ and S&P;
(x) evidence that (1) a duly completed Compliance Certificate signed by the Solectron Credit Agreement has been Chief Financial Officer or concurrently the Treasurer of the Borrower, demonstrating compliance as of the last day of the Fiscal Quarter ended on March 31, 2014 with the financial covenants in Section 7.18 after giving pro forma effect to the incurrence and repayment of Indebtedness on the Closing Date is being terminated (and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under providing such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been madebackup evidence as may reasonably be requested);
(xi) evidence satisfactory that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance or other appropriate documentation, naming the Administrative Agent that Agent, on behalf of the Obligations Secured Parties, as an additional insured or loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the extent constituting principal assets and interest) are “Designated Senior Debt” for purposes of and as defined in each properties of the Subordinated IndenturesLoan Parties that constitute Collateral;
(xii) the executed copy of the Acquisition Agreement such documentation and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (information as has been reasonably determined requested by the Administrative Agent) without Agent or any Lender prior to the prior consent Closing Date in connection with the provisions of the Lenders)Section 6.10 hereof;
(xiii) true correct and complete copies of the Financial Statementsaudited consolidated financial statements of the Borrower and its Subsidiaries for Fiscal Years 2011, Closing Date Pro Forma Consolidated Balance Sheet 2012 and Projections referred to in Section 5.092013, and interim unaudited financial statements for the Fiscal Quarter ended March 31, 2014; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(bi) Any All fees required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, in each case pursuant to the Fee Letters and (iii) all accrued but unpaid fees and expenses owing to the administrative agent, the lenders or any arranger under the Existing Credit Agreement shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least one Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrower and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make the its initial Credit Extension hereunder on and/or the Closing Date is effectiveness of Commitments hereunder are subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from the Borrower (i) this Agreement, executed and delivered by the Administrative Agent’s receipt , the Borrower and each Lender whose name appears on the signature pages hereof, (ii) the Intercreditor Agreement, executed and delivered by the parties thereto, (iii) a Note, executed and delivered by the Borrower, for the account of each Lender requesting the same, and (iv) a Balance Sheet Certificate properly completed and executed and delivered by the Borrower.
(b) The Administrative Agent shall have received a written opinion (addressed to the Administrative Agent, the Lenders and the Issuing Banks and dated the Effective Date) of (i) Polsinelli ▇▇▇▇▇▇▇▇ PC, counsel for the Loan Parties as to matters under the laws of California, Delaware, Kansas, Missouri, New York, and the United States, (ii) ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Loan Parties as to matters under the laws of Washington and (iii) ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Loan Parties as to matters under the laws of Oklahoma, in each case, in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received a Committed Loan Notice for any initial Credit Extensions to be made on the Effective Date.
(d) The Administrative Agent shall have received (i) a copy of the followingcertificate or articles of incorporation or organization, as the case may be, including all amendments thereto, of each Loan Party, certified as of which shall be originals or telecopies a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State, (followed promptly by originalsii) unless otherwise specifieda certificate of each Loan Party, each properly dated the Effective Date, substantially in the form of Exhibit E-1 and executed by a Responsible Officer of the signing Loan Party (as applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
(ii) Notes executed by the Borrowers in favor of each Lender requesting Notes;
(iii) the certificate of incorporation (or comparable document) of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (orParty, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a1) that attached thereto is a true and correct complete copy of the by-laws (or comparable document) Organizational Documents of such Loan Party as in effect on the Effective Date and at all times since the date of the resolutions described in clause (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction)2) below, (b2) that attached thereto are is a true and correct copies complete copy of resolutions duly adopted by the board Board of directors Directors or other governing body of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize authorizing the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it such Person is a partyparty and, in the case of the Borrower, the borrowings hereunder, and stating that such consentsresolutions have not been modified, licenses rescinded or amended and approvals shall be are in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ix) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Section 4.01(e) and Section 4.02(a) have been satisfied, (B) no Acquired Business Material Adverse Effect has occurred and (C) the current Debt Ratings;
(x) evidence that (1) the Solectron Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory as to the Administrative Agent relating incumbency and specimen signature of each officer executing any Loan Document or any other instrument, certificate or other document delivered in connection herewith on behalf of such Loan Party and (4) from another officer as to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal incumbency and interest) are “Designated Senior Debt” for purposes of and as defined in each specimen signature of the Subordinated Indentures;
Secretary or Assistant Secretary executing the certificate pursuant to this clause (xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee Letter, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lendersii).
(e) The representations Administrative Agent shall have received the results of a Lien search (including a search as to judgments, pending litigation, bankruptcy and warranties tax matters) made against the Borrower or any of its Subsidiaries under the UCC (or applicable judicial docket) as in effect in any state in which any of the assets of the Borrower or any such Subsidiary Party are located, indicating among other things that its assets are free and clear, or, after giving effect to the Transactions, shall be free and clear, of any Lien except for Permitted Encumbrances.
(f) The Administrative Agent shall have received payment for all accrued costs, fees and expenses (including reasonable legal fees and out-of-pocket expenses) and other compensation due and payable to the Administrative Agent, the Co-Collateral Agents, the Lead Arrangers and the Lenders on the Effective Date (or such payment will be deducted from the initial Credit Extension (if any)).
(g) The Collateral and Guarantee Requirement shall have been satisfied; provided that if, notwithstanding the use by the Borrower of commercially reasonable efforts, without undue burden or expense, to cause the Collateral and Guarantee Requirement to be satisfied on the Effective Date, the requirements thereof (other than (i) the Borrowers contained execution and delivery of the Guarantee Agreement by the Borrower and the Collateral Agreement by the Loan Parties, (ii) delivery to the Administrative Agent of certificates (if any) representing the Equity Interests (to the extent certificated) of (1) the Borrower and (2) all Wholly Owned Domestic Subsidiaries of the Borrower, (iii) delivery of Uniform Commercial Code financing statements with respect to perfection of security interests in Article V other assets of the Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code and (iv) the IP Security Agreement in proper and completed form for filing with the United States Patent and Trademark Office or United States Copyright Office) are not satisfied as of the Effective Date, the satisfaction of such requirements shall not be a condition to the availability of the initial Loans on the Effective Date (but shall be required to be satisfied within the period specified therefor in Schedule 5.13 or such later date as the Administrative Agent may reasonably agree). Without limiting the generality of the foregoing, the Administrative Agent acknowledges and agrees that the granting of Mortgages on the Material Owned Property and the obtaining of title insurance in connection with any such Mortgaged Property cannot be accomplished without undue effort or expense prior to the Effective Date, and, therefore, will not be required as a condition to the initial Credit Extension hereunder and/or the effectiveness of Commitments hereunder.
(h) Prior to or substantially simultaneously with the initial Credit Extension and/or the effectiveness of Commitments hereunder, (i) the issuance of Second Lien Notes shall have been consummated on terms and results reasonably satisfactory to the Administrative Agent, and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewiththe proceeds of the Second Lien Notes shall have been used to consummate the Refinancing.
(i) Certificates of insurance shall have been delivered to the Administrative Agent evidencing the existence of insurance maintained by the Borrower and its Subsidiaries pursuant to Section 5.07 and, the Administrative Agent shall be (A) in the case of representations and warranties that are qualified as to materialitydesignated, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as behalf of the Closing DateSecured Parties, except to as an additional insured and loss payee as its interest may appear thereunder, or solely as the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respectsadditional insured, as the case may be, as of such earlier date; thereunder (provided that if such endorsement as additional insured cannot be delivered by the Effective Date, such endorsement may be delivered at such later date as is set forth on Schedule 5.13).
(xj) The Lead Arrangers shall have received the representations and warranties contained Projections.
(k) The Lenders shall have received a certificate, substantially in Section 5.09 shall be deemed to refer the form of Exhibit E-2, from the Financial Officer of the Borrower certifying that, on a consolidated basis after giving effect to the most recent Financial Statements furnished pursuant to subsections Transactions, the Borrower and Subsidiaries are Solvent.
(al) The Lenders shall have received all documentation and (b) of Section 6.01 and (y) other information about the accuracy of the representation and warranty set forth Loan Parties as shall have been reasonably requested in Section 5.19(a) shall not be a condition precedent writing at least five business days prior to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved Effective Date by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender or the Lead Arrangers required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, in each case at least three business days prior to the proposed Closing Date specifying its objection theretoEffective Date.
Appears in 1 contract
Sources: Credit Agreement (Lmi Aerospace Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (or, in the case of the Initial Designated Borrower, an officer of the Initial Designated Borrower authorized to represent the Initial Designated Borrower, as applicableevidenced by a recent extract from the Dutch Trade Register or otherwise), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of (i) this Agreement executed by each Borrower and (ii) a Guaranty executed by each Borrower and each Material Domestic Subsidiary as of the GuarantiesClosing Date, sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
(ii) Notes executed by the Borrowers in favor of each Lender requesting Notes;
(iii) the certificate such certificates or resolutions or other action, incumbency certificates and/or other certificates of incorporation (or comparable document) Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party;
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Loan Party is duly qualified to do business organized or formed, and that each Loan Party is validly existing, in good standing under the laws and qualified to engage in business in its jurisdiction of such jurisdiction), together with an English translation thereof (if appropriate)organization;
(v) a certificate favorable opinion of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution▇▇▇▇▇▇▇ Procter LLP, delivery and performance by such Person of U.S. counsel to the Loan Documents to be executed by such Person and Parties, in the consummation of the transactions contemplated thereby form attached hereto as Exhibit I-1, and (ii) designate CMS ▇▇▇▇▇ Star Busmann, Dutch counsel to the officersInitial Designated Borrower, directors and attorneys authorized so to executein the form attached hereto as Exhibit I-2, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiariescase, addressed to the Administrative Agent for the benefit of and each Lender, in form and substance acceptable to the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiarieseach Lender;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viiivi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixvii) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, satisfied and (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred and (C) the current Debt RatingsEffect;
(xviii) evidence that (1) the Solectron Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative AgentLiens, (2) all Liens if any, securing obligations under such credit agreements the Existing Credit Agreement have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09released; and
(xivix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantiesAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
(ii) Notes executed by the Borrowers in favor of each Lender requesting Notesa Note;
(iii) executed counterparts of the certificate affirmation and consent, in form and substance reasonably satisfactory to the Administrative Agent, duly executed by each Loan Party;
(iv) completed requests for information, dated on or before the date of incorporation the initial Credit Extension, listing all effective financing statements filed in any jurisdictions requested by the Administrative Agent that name any Loan Party as debtor, together with copies of such other financing statements;
(v) such certificates of resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence Borrower as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Borrower is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party or is to be a party;
(ivvi) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Borrower is duly qualified to do business organized or formed or incorporated, as the case may be, and validly existing and in good standing under the laws of the jurisdiction of its organization (to the extent that such concept exists in such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) a favorable written opinions from each opinion of the following counsel for the Borrowers and FIL’s SubsidiariesVorys, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian special counsel for FIL to the Company, addressed to the Administrative Agent and its Subsidiaries; andeach Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(6viii) Na favorable opinion of the General Counsel of the Company, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(ix) a favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇ TrócsányiLLP, Hungarian special counsel for FIL to the Administrative Agent and its Subsidiariesthe Arrangers, addressed to the Administrative Agent and each Lender, as to the enforceability of the Loan Documents under New York law;
(viiix) a certificate of a Responsible Officer of the Company, on behalf of each Loan Party Party, either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixxi) a certificate signed by a Responsible Officer of the Company Company, on behalf of each Loan Party, certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, (B) that there has been no Acquired Business event or circumstance since October 31, 2011 that has had or would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred Effect, and (C) the current Debt Ratings;
(x) evidence that (1) the Solectron Credit Agreement has been absence of any action, suit, investigation or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory proceeding pending or, to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each knowledge of the Subordinated IndenturesCompany, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by extent not previously delivered, evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent) without the prior consent , on behalf of the Lenders);
(xiii) true correct , as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and complete copies properties of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09Loan Parties that constitutes Collateral; and
(xivxiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, any Swing Line Lender or the Required Lenders any Lender reasonably may require.
(b) Any (i) All accrued, reasonable fees and expenses required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date (including the reasonable fees and expenses of counsel (including any legal counsel) for the Administrative Agent) shall have been paid and (ii) all accrued, reasonable fees and expenses required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Greif Inc)
Conditions of Initial Credit Extension. The obligation effectiveness of each Lender to make this Agreement as an amendment and restatement of the initial Credit Extension hereunder on the Closing Date Existing Agreement is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officialsofficials or certain opinions of local counsel to Foreign Subsidiaries, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
(ii) Revolving Notes executed by the Borrowers in favor of each Lender requesting Notesa Revolving Note;
(iii) the certificate of incorporation (or comparable document) of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director Responsible Officer of each Loan Party certifying (a) as to the incumbency and genuineness of the signature of each officer of such Loan Party executing Loan Documents to which it is a party and certifying that attached thereto is a true true, correct and correct complete copy of (A) the by-laws articles or certificate of incorporation or formation (or comparable documentequivalent), as applicable, of such Loan Party and all amendments thereto, (B) the bylaws or other governing document of such Loan Party as in effect (or, if any such Loan Party is organized under on the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction)Closing Date, (bC) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors (or other governing body) of such Loan Party (or other comparable enabling action) authorizing and continuing in effect, which (i) authorize approving the transactions contemplated hereunder and the execution, delivery and performance by such Person of this Agreement and the other Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby which it is a party, and (iiD) designate the officers, directors and attorneys authorized so each certificate required to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriatebe delivered pursuant to Section 4.01(a)(iv);
(viiv) certificates as of a certificate (which may be combined with the certificate set forth in clause (v) above) recent date of the secretary or an assistant secretary good standing (or comparable officerits equivalent) or a director of each Loan Party certifying under the incumbencylaws of its jurisdiction of incorporation, signatures and authority of the officersorganization or formation (or equivalent), directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate)as applicable;
(viiv) favorable written opinions from of counsel and local counsel, as applicable, to the Company and each Designated Borrower, addressed to the Administrative Agent and each Lender (or, in the case of the following certain opinions of local counsel for the Borrowers and FIL’s to Foreign Subsidiaries, addressed to the Administrative Agent for Agent), as to the benefit of matters concerning the Administrative Agent Company or such Designated Borrower, as applicable, and the Lenders, covering such legal matters Loan Documents as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory substance, including as to exceptions and qualifications, reasonably acceptable to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2vi) P▇▇▇opinions of counsel and local counsel, ▇▇▇▇▇ & N▇▇▇▇▇as applicable, Malaysian to such other Loan Parties, addressed to the Administrative Agent and each Lender (or, in the case of certain opinions of local counsel to Foreign Subsidiaries, addressed to the Administrative Agent), as to the matters concerning such Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and in form and substance, including Labuan) counsel for FIL as to exceptions and its Subsidiariesqualifications, reasonably acceptable to the Administrative Agent, to the extent necessary to satisfy the Opinion Loan Party Threshold as of the Closing Date;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viiivii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required from Governmental Authorities or other Persons in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effecteffect and shall not be subject to any conditions that are not acceptable to the Lenders), or (B) stating that no such consents, licenses or approvals are so required;
(ixviii) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, satisfied and (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect Effect;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has occurred been obtained and (C) the current Debt Ratingsis in effect;
(x) evidence that [reserved];
(xi) a certificate of a Responsible Officer of the Company as to the satisfaction of the Loan Party Threshold and the Opinion Loan Party Threshold, together with a calculation as of September 1) , 2019 as to such thresholds and the Solectron Credit Agreement has been or concurrently with the Closing Date is being terminated satisfaction thereof in form and all letters of credit thereunder cancelled or defeased in a manner detail satisfactory to the Administrative Agent;
(A) Upon the reasonable request of any Lender made at least 3 days prior to the Closing Date, (2) all Liens securing obligations under the Company shall have provided to such credit agreements have been or concurrently Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 2 days prior to the Closing Date are being released and (3B) arrangements satisfactory at least 2 days prior to the Administrative Agent relating Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to the Notes Repayments have been made;
(xi) evidence satisfactory each Lender that so requests, a Beneficial Ownership Certification in relation to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09such Loan Party; and
(xivxiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Companyother Loan Document;
(ii) Notes as to each Borrower, a Note executed by the Borrowers such Borrower in favor of each Lender requesting Notes;
(iii) searches of filings made under the certificate UCC, the PPSA, the Bank Act (Canada) or other applicable Law, in each case in the jurisdiction of incorporation (or comparable document) formation of each Loan Party certified and each other jurisdiction reasonably deemed appropriate by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)Agent;
(iv) to such UCC and PPSA financing statements or similar documents required under any other applicable Law in the extent such jurisdiction has the legal concept name of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its for each appropriate jurisdiction of organization (oras is necessary, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as in the Administrative Agent may request Agent’s reasonable discretion, to establish that such Person is duly qualified to do business and perfect the Administrative Agent’s security interest in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)Collateral;
(v) a certificate all certificates evidencing any certificated Equity Interests pledged to the Administrative Agent pursuant to the Security Agreements, together with duly executed in blank, undated stock powers attached thereto (unless, with respect to the pledged Equity Interests of any Non-U.S. Subsidiary, such stock powers are deemed unnecessary by the Administrative Agent in its reasonable discretion under the law of the secretary or an assistant secretary (or comparable officer) or a director jurisdiction of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation organization of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) searches of the secretary or an assistant secretary (or comparable officer) or a director ownership of, and ▇▇▇▇▇ on, United States and Canadian intellectual property registrations and applications of each Loan Party certifying in the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate)appropriate governmental offices;
(vii) favorable written opinions from each duly executed notices of grant of security interest in the form required by the Security Agreements as are necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the United States and Canadian intellectual property registrations and applications of the following counsel for the Borrowers and FIL’s SubsidiariesLoan Parties;
(viii) such certificates of resolutions or other action, addressed to the Administrative Agent for the benefit incumbency certificates and/or other certificates of the Administrative Agent and the Lenders, covering such legal matters Responsible Officers of each Loan Party as the Administrative Agent may reasonably request require evidencing the identity, authority and otherwise capacity of each CHAR1\1976173v4 Responsible Officer thereof authorized to act as a Responsible Officer in form connection with this Agreement and substance satisfactory the other Loan Documents to which such Loan Party is a party;
(ix) such documents and certifications as the Administrative Agent:Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrowers and the Restricted Subsidiaries is validly existing and in good standing in its jurisdiction of organization or formation;
(1x) Ca favorable opinion of each of (A) ▇▇▇▇▇, M▇ & ▇▇▇▇▇-▇ ▇▇▇▇ ▇▇▇▇▇▇▇, Colt & Mosle ▇ LLP, U.S. counsel for FIL and its Subsidiaries;
to the Loan Parties, (2B) P▇▇▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel to the Loan Parties and (C) local counsel to the Loan Parties in each other jurisdiction for FIL which the Administrative Agent has requested a legal opinion, in each case addressed to the Administrative Agent and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányieach Lender, Hungarian counsel for FIL as to such matters concerning the Loan Parties and its Subsidiariesthe Loan Documents as the Administrative Agent may reasonably request;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixxi) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Section 4.01(eSections 4.01(b), 4.01(c), 4.02(a) and Section 4.02(a4.02(b) have been satisfiedsatisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xii) a certificate signed by the chief financial officer of the Company certifying that the Company and its Subsidiaries are Solvent on a consolidated basis after giving effect to the Credit Extensions to be made hereunder on the Closing Date;
(xiii) a perfection certificate in form and substance reasonably satisfactory to the Administrative Agent and signed by a Responsible Officer of the Company;
(xiv) evidence reasonably satisfactory to the Administrative Agent that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and
(xv) copies of (A) the audited consolidated balance sheets of the Company and its Subsidiaries for the fiscal years ended December 31, 2015, 2016 and 2017, and the related consolidated statements of operations, comprehensive income, changes in equity and cash flows for such fiscal years of the Company and its Subsidiaries, including the notes thereto, (B) no Acquired Business Material Adverse Effect has occurred unaudited consolidated financial statements of the Company and its Subsidiaries for each fiscal quarter ending on or after March 31, 2018 and at least sixty (C60) days prior to the current Debt Ratings;Closing Date, including balance sheets and statements of income or operations, shareholders’ equity and cash flows (the “Interim Financial Statements”) and annual projections for the Company and its Subsidiaries for the five (5) full fiscal years ending after the Closing Date.
(xb) evidence that (1) Substantially concurrently herewith, all obligations under the Solectron Existing Credit Agreement shall have been repaid in full (other than contingent indemnification obligations for which no claim or demand has yet been or concurrently with the Closing Date is being made), all commitments thereunder shall have been terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements the same shall have been released (or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments for such release shall have been made;).
(xic) evidence There shall not exist any action, suit, investigation or proceeding pending or, to the knowledge of the Company or any other Loan Party, threatened in writing in any court or before any arbitrator or governmental authority that would reasonably be expected to have a Material Adverse Effect.
(d) The Administrative Agent and the Lenders shall have completed due diligence of the Loan Parties and their respective Subsidiaries in scope, and with results, reasonably satisfactory to the Administrative Agent that and the Obligations Lenders, including OFAC, FCPA and Corruption of Foreign Public Officials Act (Canada). CHAR1\1976173v4
(e) The Administrative Agent and the Lenders shall have received all documentation and other information with respect to each Loan Party requested in writing at least five (5) Business Days prior to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined Closing Date by the Administrative Agent) Agent that any Lender determines is required by regulatory authorities under applicable Law, including without limitation the prior consent of PATRIOT Act, the Lenders);
(xiii) true correct Canadian AML Acts and complete copies of the Financial Statementsapplicable U.S. and Canadian law regarding anti-money laundering, Closing Date Pro Forma Consolidated Balance Sheet anti-terrorist financing, government sanction and Projections referred to in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require“know your customer” matters.
(bf) Any fees required At least three (3) Business Days prior to be paid on or before the Closing Date Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have been paiddelivered to each Lender that so requests a Beneficial Ownership Certification in relation to such Borrower.
(cg) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company shall have paid (i) all fees and expenses required to be paid on the Closing Date pursuant to the Fee Letter or other writing between or among the Company and any lender(s) and (ii) all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least three (3) Business Days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings and as shall be identified in the invoice provided at least three (3) Business Days prior to the Closing Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Celestica Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersLenders unless otherwise specified:
(i) executed counterparts of this Agreement and the GuarantiesAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyParent;
(ii) Notes executed by the Borrowers a Note in favor of each Lender requesting Notesa Note;
(iii) the certificate of incorporation for each Loan Party, (A) its charter (or comparable similar formation document) of each Loan Party ), certified by the Secretary of State appropriate governmental authority, (B) its bylaws (or comparable public officialsimilar governing document), (C) resolutions duly adopted by its board of its jurisdiction directors (or similar governing body) approving such Loan Party’s execution, delivery and performance of organization this Agreement and the other Loan Documents to which it is party, and (orD) incumbency certificates evidencing the identity, if any authority and capacity of each Responsible Officer of such Person Loan Party authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is organized under the laws of any jurisdiction outside the United States, a party;
(iv) such other evidence documents and certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Loan Party is duly organized or formed, and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for that each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business validly existing and in good standing under the laws in its jurisdiction of such jurisdiction), together with an English translation thereof (if appropriate)organization;
(v) a certificate favorable opinion of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (orG▇▇▇▇▇▇ Procter LLP, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of counsel to the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s SubsidiariesParties, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenderseach Lender, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL Agent and its Subsidiariesthe Required Lenders;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viiivi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all stating that no consents, licenses and or approvals of any Governmental Authority or pursuant to any Material Contract are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixvii) a certificate signed by a Responsible Officer of the Company Borrowers certifying (A) that the conditions specified in Section Sections 4.01(e) and Section (f) and Sections 4.02(a) and (b) have been satisfied, (B) no Acquired Business Material Adverse Effect has occurred and (C) the current Debt Ratings;
(xviii) evidence that (1) all insurance required to be maintained pursuant to the Solectron Credit Agreement Loan Documents has been or concurrently with the Closing Date obtained and is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09effect; and
(xivix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid pursuant to any Loan Document on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) payable pursuant to the Loan Documents to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the The Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date occurred on the terms set forth in the Acquisition Agreement (without amendmentor before May 15, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders)2011.
(e) The representations and warranties There shall have been no event or circumstance since the date of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document Audited Financial Statements that has had or could be reasonably expected to have, either individually or in any document furnished at any time under or in connection herewith or therewiththe aggregate, a Material Adverse Effect.
(f) There shall be (A) in no action, suit, investigation or proceeding pending or, to the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as knowledge of the Closing DateBorrowers, except threatened in writing in any court or before any arbitrator or Governmental Authority that has had or could reasonably be expected to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be have a condition precedent to the funding of any LoansMaterial Adverse Effect. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Unifirst Corp)
Conditions of Initial Credit Extension. The obligation of each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement and the GuarantiesAgreement, sufficient in number for distribution to the Administrative Agent, the Canadian Administrative Agent, each Lender and the Companyeach Loan Party;
(ii) Notes if requested by any Lender at least two Business Days before the Closing Date, a Note executed by the Borrowers Applicable Borrower in favor of each Lender so requesting Notesa Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers or the corporate secretary or assistant secretary of the Company and McKesson Canada as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) each of the following documents:
(1) the articles or certificate of incorporation (or comparable document) and the bylaws of each Loan Party Borrower as in effect on the Closing Date, certified by the Secretary or Assistant Secretary of such Borrower as of the Closing Date;
(2) a good standing and tax good standing certificate for the Company from the applicable Secretary of State (or comparable public officialsimilar, applicable Governmental Authority) of its jurisdiction the States of organization (or, if any such Person is organized under the laws Delaware and California dated as of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);a recent date; and
(iv3) to a certificate of status for McKesson Canada from the extent such jurisdiction has the legal concept Registrar of Joint Stock Companies of Nova Scotia, dated as of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)recent date;
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiariesopinions, addressed to the Administrative Agent for the benefit of the Administrative Agent Agents and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) Cof I▇▇▇ ▇. ▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLPExecutive Vice President, U.S. General Counsel and Secretary of the Company, as to the matters set forth in Exhibit C and such other matters as the Administrative Agent may reasonably request, and Stewart, McKelvey, Stirling, Scales, special Canadian counsel for FIL to the Company and its SubsidiariesMcKesson Canada, as to certain matters of Canadian law;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixvi) a certificate signed by a Responsible Officer of the Company Company:
(1) certifying that:
(Aa) that the conditions specified representations and warranties contained in Section 4.01(e) Article V and Section 4.02(a) have been satisfiedthe other Loan Documents are true and correct on and as of such date, as though made on and as of such date;
(Bb) no Acquired Business Default or Event of Default exists or would result from the initial Borrowing;
(c) there has occurred since March 31, 2004, no event or circumstance that has resulted or could reasonably be expected to result in a Material Adverse Effect has occurred and Effect;
(C2) designating the current Closing Date; and
(3) indicating the Debt Ratings;
(xvii) evidence that a certificate signed by a Responsible Officer of McKesson Canada certifying that:
(1) the Solectron Credit Agreement has been or concurrently with representations and warranties of McKesson Canada contained in Article V are true and correct on and as of the Closing Date is being terminated Date, as though made on and all letters as of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, such date;
(2) all Liens securing obligations under such credit agreements no Default or Event of Default with respect to McKesson Canada or any of its Subsidiaries exists or would result from the initial Borrowing; and
(3) there has occurred since March 31, 2004, no event or circumstance with respect to McKesson Canada or any of its Subsidiaries that has resulted or could reasonably be expected to result in a Material Adverse Effect;
(viii) evidence that the Existing Credit Agreements have been or concurrently with the Closing Date are being released terminated and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments any amounts outstanding thereunder have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined paid in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09full; and
(xivix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the Canadian Administrative Agent, the L/C Issuer or the Required Lenders reasonably may require.
(b) Any fees required by the Loan Documents to be paid to either Agent, the L/C Issuer or any Lender on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the The Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date occurred on the terms set forth in the Acquisition Agreement (without amendmentor before September 27, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans2004. Without limiting the generality of the provisions of the last paragraph of Section 9.039.05, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (McKesson Corp)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantiesGuaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note;
(iii) the certificate such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party;
(iv) such documents and certifications as Administrative Agent may reasonably require to the extent such jurisdiction has the legal concept of a corporation being evidence that each Loan Party is duly organized or formed, and that Borrower and each Guarantor is validly existing, in good standing and a Governmental Authority qualified to engage in such business in each jurisdiction issues any evidence where its ownership, lease or operation of such good standing, a Certificate of Good Standing (properties or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) conduct of its jurisdiction of organization (orbusiness requires such qualification, if any such Person is organized under except to the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish extent that such Person is duly qualified failure to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)so could not reasonably be expected to have a Material Adverse Effect;
(v) a certificate favorable opinion of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL to the Loan Parties, addressed to Administrative Agent and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányieach Lender, Hungarian counsel for FIL in form and its Subsidiariessubstance satisfactory to Administrative Agent and as to the matters concerning the Loan Parties and the Loan Documents as Administrative Agent may reasonably request;
(viiivi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all governmental, shareholder and third party consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixvii) a certificate signed by a Responsible Officer of the Company Borrower certifying (which certifications shall be true and correct):
(A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, ;
(B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred and Effect;
(C) that there is no pending or threatened litigation, investigation or proceeding that could materially affect this Agreement or the current Debt Ratings;
(x) evidence other Loan Documents in any adverse manner or that (1) could otherwise reasonably be expected, individually or in the Solectron Credit Agreement has been aggregate, to have or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased result in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09Material Adverse Effect; and
(xivD) that, after giving effect to the incurrence of Indebtedness under the Loan Documents, Borrower and each Guarantor are Solvent; and
(viii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, L/C Issuers, Swing Line Lender or the Required Lenders reasonably may require.
(b) Borrower and its Subsidiaries shall be in pro forma compliance with the terms and conditions of this Agreement and the other Loan Documents (including the financial covenants set forth in Section 6.12) after giving effect to the initial Credit Extensions on the Closing Date.
(c) All accrued and unpaid fees under the Original Credit Agreement to the date of this Agreement shall have been (or concurrently with the making of the initial Loans will be) paid, and all principal amounts, if any, owing to any Exiting Lenders shall have been (or concurrently with the making of the initial Loans will be) paid.
(d) Any fees required to be paid to Lenders, Administrative Agent and L/C Issuers on or before the Closing Date shall have been paid.
(ce) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrower and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Azz Inc)
Conditions of Initial Credit Extension. The obligation of each Lender and the Letter of Credit Issuer to make the any initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
: (a) The Administrative Agent’s receipt of the following, each of which shall following items (except those items that are expressly permitted to be originals or telecopies (followed promptly by originals) unless otherwise specifieddelivered after the Closing Date pursuant to the Post-Closing Agreement), each properly executed by a Responsible Officer of the signing applicable Loan Party (as applicable)Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
its legal counsel: (i) executed counterparts of this Agreement and each of the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
Security Instruments; (ii) Revolving Credit Loan Notes executed by the Borrowers in favor of each Lender requesting Notes;
a Revolving Credit Loan Note; (iii) the a Secretary’s certificate of incorporation (or comparable document) of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State certifying as to (or comparable public officialA) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy complete copies of the by-laws (or comparable document) all Organizational Documents of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction)attached thereto, (bB) that attached thereto are true and correct copies resolutions of resolutions duly adopted by the board Board of directors of such Loan Party (Directors or other comparable enabling action) and continuing in effect, which (i) authorize the organizational action authorizing execution, delivery and performance by such Person of the all Loan Documents to be executed by which such Person Loan Party is a party, and (C), incumbency of officers (including specimen signatures) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the other Loan Documents to be executed by which such Person, together with Loan Party is a certified English translation thereof party; (if appropriate);
(viiiv) favorable written opinions certification from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters any applicable Governmental Authority as the Administrative Agent may reasonably request require to evidence that each Loan Party is duly organized or formed, and otherwise that each Loan Party is validly existing, in form good standing and substance satisfactory qualified to engage in business in its jurisdiction of organization and in any other jurisdiction in which the Administrative Agent:
failure to be so qualified could reasonably be expected to have a Material Adverse Effect, including certificates of good standing and qualification to engage in business in each applicable jurisdiction; (1v) Ca favorable opinion of ▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian counsel to the Loan Parties, and acceptable Canadian and New York counsel to the Loan Parties, each addressed to the Administrative Agent and each Lender and their successors and assigns, as to the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request; (including Labuanvi) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viii) a certificate certificates of a Responsible Officer Officers of each the Borrower Agent or the applicable Loan Party Parties either (A) attaching copies of identifying all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party each Borrower and the validity against each such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, and attaching true and correct copies thereof or (B) stating that no such consents, licenses or approvals are so required;
; 120 [Matrix] Credit Agreement #85638137 (ixvii) a certificate signed by a Responsible Officer of the Company Borrower Agent certifying (A) that the conditions specified in Section 4.01(eSections 5.02(a) and Section 4.02(a5.02(b) have been satisfiedsatisfied and (B) as to the matters described in Section 5.01(d); (viii) (A) audited financial statements of the Company and its Subsidiaries for each of the three (3) fiscal years immediately preceding the Closing Date, (B) no Acquired Business Material Adverse Effect has occurred unaudited interim financial statements for the Company and its Subsidiaries as of July 31, 2021, and (C) financial projections of the current Debt Ratings;
Company and its Subsidiaries for the next two (2) fiscal years; (ix) a certificate signed by the Chief Financial Officer or the Chief Accounting Officer of the Borrower Agent certifying that, after giving effect to the entering into of the Loan Documents and the consummation of all of the Transactions, (A) each Borrower is Solvent and (B) the Loan Parties, taken as a whole, are Solvent; (x) evidence that (1) all insurance required to be maintained pursuant to the Solectron Credit Agreement Loan Documents has been or concurrently obtained and is in effect; (xi) an initial Borrowing Base Certificate; (xii) initial written notice of Borrowing; (xiii) delivery of UCC and PPSA financing statements, suitable in form and substance for filing in all places required by applicable law to perfect the Liens of the Administrative Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable law to perfect the Liens of the Administrative Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Administrative Agent may require; (xiv) UCC and PPSA search results showing only those Liens as are acceptable to the Administrative Agent and Lenders; (xv) evidence of the payment in full and cancellation of the Existing Agreement, including terminations of UCC and PPSA financing statements filed in connection with the Closing Date is being terminated Existing Agreement and all letters other evidence of credit thereunder cancelled or defeased in a manner satisfactory lien releases and other related matters on terms acceptable to the Administrative Agent, ; (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xixvi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
consummation (xiiin compliance with all applicable laws and regulations, with the receipt of all material governmental, shareholder and third party consents and approvals relating thereto) the executed copy of the Acquisition Agreement Transactions; (xvii) completion of a Field Exam, asset appraisal, insurance review and all other related documentation legal review; and (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xivxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the Letter of Credit Issuer, the Swing Line Lender or the Required Lenders may reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee Letter, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition . 121 [Matrix] Credit Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.#85638137
Appears in 1 contract
Sources: Credit Agreement (Matrix Service Co)
Conditions of Initial Credit Extension. The effectiveness of this Agreement and the obligation of each L/C Issuer and each Lender to make the initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyAgreement;
(ii) Notes a Note executed by the Borrowers Company in favor of each Lender requesting Notesa Note at least two (2) Business Days prior to the Closing Date;
(iii) the certificate of incorporation (or comparable document) of each Loan Party certified by the Secretary secretary of State state (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized or incorporated under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly organized or incorporated and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate certificate of Good Standing good standing (or comparable certificate) for each Loan Party certified by the Secretary secretary of State state (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (aA) that attached thereto is a true and correct copy of the by-laws bylaws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized or incorporated under the laws of any jurisdiction outside the United States, its constitutional documents or any other comparable document provided for in the respective corporate laws of that jurisdiction), (bB) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i1) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii2) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (cC) that there are no proceedings for the dissolution dissolution, liquidation, winding-up, judicial management, arrangement or liquidation administration (or any comparable proceedings in any jurisdiction) of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following legal counsel for the Borrowers and FIL’s SubsidiariesLoan Parties, addressed to the Administrative Agent for the benefit of the Administrative Agent Agent, each Lender and the Lenderseach L/C Issuer, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
: (1A) C▇▇▇▇▇, M▇ ▇▇▇▇▇-▇ ▇▇▇▇▇▇▇, Colt & Mosle ▇ LLP, U.S. counsel for FIL the Company and its Subsidiaries;
, and (2B) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL the Company and its Subsidiaries;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ix) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Section 4.01(e4.02(a) (including, for the avoidance of doubt, the representations and warranties set forth in Section 5.07 and Section 5.16) and Section 4.02(a4.02(b) have been satisfied, (B) that there has been no Acquired Business event or circumstance since March 31, 2025 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred and Effect, (C) the current Debt Ratings, (D) pro forma calculations of the Debt/EBITDA Ratio and the Interest Coverage Ratio, based upon the Company’s audited Financial Statements for the fiscal year ended March 31, 2025, and (E) to the identity of all Specified Subsidiaries;
(x) evidence that (1) the Solectron Existing Credit Agreement has been (or concurrently with the Closing Date is being being) terminated with all loans and other amounts outstanding thereunder paid, and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) and all Liens securing obligations under such credit agreements agreement have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09released; and
(xivxi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, any L/C Issuer, any Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date The Loan Parties shall have been paid.
(c) Unless waived provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent and subject to the Fee Letter, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to as required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the proposed Closing Date specifying its objection theretoAct.
Appears in 1 contract
Sources: Credit Agreement (Flex Ltd.)
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt Agent shall have received all of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement executed by the Borrower, the Guarantor and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyLender;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note;
(iii) counterparts of the Guaranty executed by the Guarantor;
(iv) such certificate of incorporation (resolutions or comparable document) other action, incumbency certificate and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party;
(ivv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Loan Party and the General Partners are duly organized or formed, and that each Loan Party and each General Partner is duly qualified to do business and validly existing, in good standing under the laws and qualified to engage in business in its jurisdiction of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate)formation;
(vi) a certificate favorable opinion of (which may be combined with the certificate set forth in clause (vA) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL to each Loan Party and its Subsidiaries; and
the General Partners, and (6B) N▇▇▇ ▇▇ Trócsányithe Vice President, Hungarian counsel for FIL General Counsel and its SubsidiariesSecretary of the MLP General Partner, in each case in form and substance satisfactory to Administrative Agent and the Lenders, addressed to the Administrative Agent and each Lender;
(viiivii) a certificate of a Responsible Officer of each Loan Party either Party, (A) attaching copies of either (i) certifying that all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be are in full force and effect, or (Bii) stating that no such consents, licenses or approvals are so required; and (B) certifying as to the matters set forth in clauses (A), (B) and (C) below;
(A) the representations and warranties of each Loan Party set forth in this Agreement shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to the extent that any such representation or warranty is qualified by materiality) on the Closing Date, both before and after giving effect to any Credit Extension being made on such date;
(B) no Default shall exist on the Closing Date, before and after giving effect to any Credit Extension being made on such date; and
(C) there does not exist any pending or threatened (i) proceeding under any Debtor Relief Law in respect of any Loan Party or any Subsidiary, or (ii) litigation or other proceeding in respect of the initial Credit Extension or that could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) evidence that (A) all Loans under and as defined in the Borrower Existing Credit Agreement shall have been or shall concurrently be repaid in full or refinanced with Loans under this Agreement, together with accrued interest thereon and any accrued fees due, and the commitments of the lenders thereunder shall have been or shall concurrently be terminated, (B) all Loans under and as defined in the Sunoco Partners Marketing Existing Credit Agreement shall have been or shall concurrently be repaid in full, together with accrued interest thereon and any accrued fees due, and the commitments of the lenders thereunder shall have been or shall concurrently be terminated; and
(ix) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Section 4.01(e) and Section 4.02(a) have been satisfied, (B) no Acquired Business Material Adverse Effect has occurred and (C) the current Debt Ratings;
(x) evidence that (1) the Solectron Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Initial Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrower and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed executed and delivered this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantiesAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note;
(iii) executed counterparts of the certificate of incorporation (or comparable document) of each Loan Party certified that certain Omnibus Reaffirmation, Ratification and Amendment Agreement, duly executed by the Secretary Borrower and Guarantor, together with:
(A) results of State lien searches for filings in the jurisdictions referred to in Section 4.01(a)(iii)(A) that name the Borrower as debtor, and
(or comparable public officialB) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such evidence that all other evidence as action that the Administrative Agent may request deem necessary or desirable in order to establish that such Person is duly organized and existing perfect the Liens created under the laws Security Agreement has been taken (including receipt of such jurisdiction)duly executed payoff letters, together with an English translation thereof (if appropriateUCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements);
(iv) to the extent such jurisdiction has the legal concept [reserved];
(v) certified copies of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence resolutions or other action, incumbency certificates and/or other certificates of such good standing, a Certificate Responsible Officers of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that such Person each Loan Party is duly qualified incorporated and in good standing in Bermuda, including without limitation certificates of compliance issued by the Registrar of Companies of Bermuda for each Loan Party, dated a date close to do business the date of this Agreement, stating that each Loan Party is duly incorporated and in good standing under the laws Companies ▇▇▇ ▇▇▇▇ of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate)Bermuda;
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇ ▇▇▇▇▇-▇ ▇▇▇▇▇▇▇, Colt & Mosle ▇▇ US LLP, U.S. counsel for FIL and its Subsidiaries;
to the Loan Parties, (2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇ ▇▇▇▇ B& ▇▇▇▇▇▇▇ LLPLimited, Canadian special Bermuda counsel for FIL to the Loan Parties, and its Subsidiaries; and
(63) N▇▇▇ ▇▇ Trócsányiappropriate local counsel to the Loan Parties, Hungarian counsel for FIL in each case addressed to the Administrative Agent and its Subsidiarieseach Lender, as to the matters set forth in Exhibit F and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ix) a certificate signed by a Responsible Officer of the Company Borrower and the Guarantor certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, and (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred and (C) the current Debt RatingsEffect;
(x) evidence that (1) a duly completed Compliance Certificate as of the Solectron Credit Agreement has been or concurrently with last day of the Closing Date is being terminated respective fiscal quarters of the Borrower and all letters the Guarantor ended on March 31, 2022, signed by Responsible Officers of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with Borrower and the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been madeGuarantor;
(xi) evidence satisfactory that all insurance required to be maintained pursuant to the Loan Documents has been obtained, is in effect and contains endorsements naming the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each Agent, on behalf of the Subordinated IndenturesLenders, as a joint assured and/or co-loss payee, as the case may be, under such insurance;
(xii) evidence that all filings, recordations and searches necessary or desirable to perfect the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification Lien on any property granted to or waiver thereof which is adverse to the Lenders (as reasonably determined held by the Administrative Agent) without the prior consent of the Lenders)Agent under any Loan Document shall have been completed, and that all related filing and recording fees and taxes shall have been duly paid;
(xiii) true correct and complete copies a Borrowing Base Certificate duly certified by a Responsible Officer of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred Borrower relating to in Section 5.09the initial Credit Extension; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer or the Required Lenders reasonably may require.
(bi) Any All fees required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrower and the Administrative Agent).
(d) Evidence that The Administrative Agent shall have completed a due diligence investigation of the Closing Date Transaction Guarantor, the Borrower and their respective Subsidiaries in scope, and with results, satisfactory to the Administrative Agent and shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse given such access to the Lenders management, records, books of account, contracts and properties of the Guarantor, the Borrower and their respective Subsidiaries and shall have received such financial, business and other information regarding each of the foregoing persons and businesses as they shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, collective bargaining agreements and other arrangements with employees, the annual (as reasonably determined or other audited); and no changes or developments shall have occurred, and no new or additional information, shall have been received or discovered by the Administrative Agent) without Agent or the prior consent Lenders regarding the Guarantor, the Borrower or their respective Subsidiaries or the transactions contemplated hereby after March 31, 2022 that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, and nothing shall have come to the attention of the Lenders)Administrative Agent or the Lenders to lead them to believe that the transactions contemplated hereby will have a Material Adverse Effect.
(e) The representations No action, suit, investigation or proceeding is pending or, to the knowledge of the Guarantor or the Borrower, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect.
(f) All interest and warranties fees accrued under the Existing Credit Agreement through the Closing Date shall have been paid in full by the Borrower, and the Administrative Agent shall have received reasonably satisfactory evidence thereof.
(g) Upon the reasonable request of any Lender made at least seven (i7) days prior to the Borrowers contained Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in Article V connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least five (5) days prior to the Closing Date and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be least five (A5) in the case of representations and warranties that are qualified as days prior to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations the Borrower or Guarantor qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification.
(h) No Default shall have occurred and warranties specifically refer to an earlier date, in which case they shall be true and correct continuing under the Existing Credit Agreement immediately before the Closing Date or true and correct in all material respects, as under this Agreement immediately after the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any LoansClosing Date. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless Lender, including the Administrative Agent shall have received notice from such Lender prior to Pledge Agreement and the proposed Closing Date specifying its objection theretoSecurity Agreement.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, the Subsidiary Guaranty and the GuarantiesCompany Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyCompany (it being understood and agreed that the Subsidiary Guaranty shall be executed and delivered by each Domestic Subsidiary that is not otherwise an Excluded Subsidiary as of the Closing Date);
(ii) Notes executed by the Borrowers in favor of each Lender requesting Notes;
(iii) the certificate such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party;
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Loan Party is duly qualified to do business organized or formed, and that each Loan Party is validly existing, in good standing under (subject to Section 5.01(a)) and, solely in the laws case of each Borrower, qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such jurisdiction)qualification, together with an English translation thereof (if appropriate)except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a certificate favorable opinion of the secretary or an assistant secretary (or comparable officerA) or a director of each Loan Party certifying DLA Piper LLP (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdictionUS), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of special New York counsel to the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby Parties, and (iiB) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇ ▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLPGeneral Counsel of the Company, U.S. counsel for FIL in each case, addressed to the Administrative Agent and its Subsidiarieseach Lender, as to those matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viiivi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;; and
(ixvii) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, satisfied and (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred and (C) the current Debt Ratings;
(x) evidence that (1) the Solectron Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may requireEffect.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make the initial Credit Extension its Loan hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) counterparts of this Agreement each properly executed by a Responsible Officer of the signing Loan Party and the Lenders in such number as the Agent may request;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to become a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to become a party and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
(ii) Notes executed by the Borrowers in favor of each Lender requesting Notes;
(iii) the certificate of incorporation (or comparable document) of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Agent may reasonably request as to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)organization;
(v) a certificate favorable opinions of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true Cains Advocates Limited and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLPAttorneys PLLC, Canadian counsel for FIL each addressed to the Agent and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányieach Lender on the Closing Date, Hungarian counsel for FIL as to such matters concerning the Loan Parties and its Subsidiariesthe Loan Documents as the Agent may reasonably request, in form and substance reasonably satisfactory to the Agent;
(viiivi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ix) a certificate signed by a Responsible Officer of the Company Borrower certifying (A) that the conditions specified in Section 4.01(e4.1(h) and Section 4.02(a(i) have been satisfied, (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred and (C) to the current Debt RatingsSolvency of the Loan Parties, on a Consolidated basis, as of the Closing Date after giving effect to the Transactions;
(xvii) subject to Section 6.15, evidence that (1) the Solectron Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner reasonably satisfactory to the Administrative AgentAgent that all insurance required to be maintained pursuant to the Loan Documents and all certificates and endorsements in favor of the Agent required under the Loan Documents have been obtained and are in effect;
(viii) payoff letters and applicable Lien release documentation (including UCC-3s) from the agents under the MSL Loan Agreement and the NSB Credit Agreement reasonably satisfactory in form and substance to the Agent evidencing that any such loan facilities have been terminated, (2) all obligations paid in full, and all Liens securing obligations of the Loan Parties under such credit agreements facilities have been or concurrently with the Closing Date are being released released;
(ix) the Security Documents (subject to Section 6.15, in the case of Control Agreements (as such term is defined in the Guaranty and Security Agreement)) and all other Loan Documents (3to the extent to be executed on the Closing Date), each duly executed by the applicable Loan Parties;
(x) a copy of the Settlement Agreement;
(xi) stipulations of dismissal of any litigation between Borrower and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or Triangulum Partners, LLC signed in escrow by individuals with authority to bind Borrower, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Triangulum Partners, LLC that are satisfactory in form and substance to the Agent, evidencing that any litigation between Borrower and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or Triangulum Partners, LLC will be dismissed in its entirety with prejudice upon payment of the sums due under the Settlement Agreement;
(xii) proposed forms of orders agreed to by individuals with authority to bind Borrower, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Triangulum Partners, LLC that shall be filed in any litigation between Borrower and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or Triangulum Partners, LLC upon payment of the sums due under the Settlement Agreement that are reasonably satisfactory in form and substance to the Agent to evidence that the litigation will be dismissed in its entirety with prejudice;
(xiii) results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Liens permitted by Section 7.1 and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, in each case satisfactory to the Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Administrative Agent relating to for the Notes Repayments delivery of such termination statements have been made;
(xixiv) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal all documents and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendmentinstruments, modification or waiver thereof which is adverse to the Lenders (as including Uniform Commercial Code financing statements reasonably determined requested by the Administrative Agent) without Agent to be filed, registered or recorded to create or perfect the prior consent of first priority Liens intended to be created under the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09Loan Documents; and
(xivxv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived Warrant Agreement, duly executed by the Administrative Agent and subject to the Fee Letter, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent)Borrower.
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction or waiver in accordance with Section 10.01 of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantiesGuaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note;
(iii) an amended and restated security agreement, in substantially the certificate form of incorporation Exhibit F (or comparable document) of together with each other security agreement and security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “Security Agreement”), duly executed by each Loan Party certified Party, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Secretary of State Pledged Debt indorsed in blank,
(or comparable public officialB) of its jurisdiction of organization (orproper financing statements, if any such Person is organized duly prepared for filing under the laws Uniform Commercial Code of any jurisdiction outside the United States, such other evidence as all jurisdictions that the Administrative Agent may request reasonably deem necessary or desirable in order to establish that such Person is duly organized perfect and existing protect the first priority liens and security interests created under the laws Security Agreement, covering the Collateral described in the Security Agreement,
(C) completed requests for information, dated on or before the date of such jurisdiction)the initial Credit Extension, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with an English translation thereof copies of such other financing statements,
(if appropriateD) reasonable evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may reasonably deem necessary or desirable in order to perfect the Liens created thereby,
(E) copies of the Assigned Agreements referred to in the Security Agreement, together with a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties, and
(F) reasonable evidence that all other action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters and UCC-3 termination statements to the extent requested by the Administrative Agent);
(iv) an amended and restated intellectual property security agreement or an intellectual property security agreement supplement, in substantially the form of Exhibit G hereto (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing“Intellectual Property Security Agreement”), a Certificate of Good Standing (or comparable certificate) for duly executed by each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (orParty, if any such Person is organized under the laws of any jurisdiction outside the United States, such other together with evidence as that all action that the Administrative Agent may request reasonably deem necessary or desirable in order to establish that such Person is duly qualified to do business perfect and in good standing protect the first priority liens and security interests created under the laws of such jurisdiction), together with an English translation thereof (if appropriate)Intellectual Property Security Agreement has been taken;
(v) a certificate such certificates of the secretary resolutions or an assistant secretary (or comparable officer) or a director other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request require evidencing the identity, authority and otherwise capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in form connection with this Agreement and substance satisfactory the other Loan Documents to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiarieswhich such Loan Party is a party or is to be a party;
(2vi) P▇▇▇such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower, Holdings and each of their respective Subsidiaries is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vii) a favorable opinion of L▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ BW▇▇▇▇▇▇ LLP, Canadian counsel for FIL to the Loan Parties, addressed to each Agent and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányieach Lender, Hungarian counsel for FIL as to the matters set forth in Exhibit H-1 and its Subsidiariessuch other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viii) a favorable opinion of Boult, Cummings, C▇▇▇▇▇▇ & B▇▇▇▇, PLC, local counsel to the Loan Parties in Tennessee, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit H-2 and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixx) a certificate signed by a Responsible Officer of Holdings, the Company statements in which shall be true, certifying (A) that the conditions specified in Section 4.01(e) and Section 4.02(a) have been satisfied, (B) no Acquired Business Material Adverse Effect has occurred and (C) the current Debt Ratings;
(x) evidence that (1) the Solectron Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee Letter, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers Borrower and each other Loan Party contained in Article V and (ii) each Loan Party contained or in each any other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case respects on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they as of such earlier date and (2) no Default exists or would result from the initial Credit Extension or the application of the proceeds thereof and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xi) certificates attesting to the Solvency of each Loan Party before and after giving effect to the Transaction, from its Chief Financial Officer;
(xii) such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lenders shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans and Multiemployer Plans, collective bargaining agreements and other arrangements with employees, audited annual financial statements dated December 31, 2005, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available (or, in the event the Lenders’ due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the day of the initial Credit Extension), pro forma financial statements as to Holdings and forecasts prepared by management of Holdings, in form and substance satisfactory to the Lenders, of balance sheets, income statements and cash flow statements on a quarterly basis for the first year following the day of the initial Credit Extension and on an annual basis for each year thereafter until the Maturity Date for the Term B Facility;
(xiii) a Committed Loan Notice relating to the initial Credit Extension;
(xiv) (A) a duly completed Senior Secured Leverage Covenant Compliance Certificate and (B) a duly completed Revolver Maintenance Covenant Compliance Certificate, in each case as of the last day of the fiscal quarter of Holdings most recently ended prior to the Closing Date for which financial statements are available, each of which shall be true completed as though the Loans borrowed on the Closing Date had been incurred as of the first day of the four-quarter period covered by such Compliance Certificate, assuming that such Loans were Eurodollar Rate Loans and correct that the LIBO Rate applicable thereto was equal to a rate designated by the Administrative Agent to the Borrower as of the Closing Date, and as though the Indebtedness under the Existing Credit Agreement had been repaid as of such date, signed by a Responsible Officer of Holdings;
(xv) reasonable evidence that all outstanding interest, fees, expenses and other amounts (other than principal of Loans) under the Existing Credit Agreement have been or true concurrently with the Closing Date are being paid in full and correct all commitments thereunder terminated;
(xvi) certified copies of each Qualified Designated Entity Agreement executed prior to the closing date with respect to each ANB Entity, each Auction 66 Entity and each Oregon Entity, which shall be in form and substance reasonably satisfactory to the Administrative Agent; and
(xvii) such other assurances, certificates, documents, consents or opinions as any Agent, any L/C Issuer or any Lender reasonably may require.
(b) The Lenders shall be reasonably satisfied with the amount, types and terms and conditions of all material respectsinsurance maintained by Holdings and its subsidiaries; and, to the extent available on a commercially reasonably basis, the Lenders shall have received endorsements naming the Administrative Agent or the Collateral Agent (as defined in the Security Agreement) on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral.
(c) All accrued fees and expenses of the Administrative Agent, the Joint Lead Arrangers and the Lenders (including the fees and expenses of counsel for the Administrative Agent and local counsel for the Lenders) that are by their terms payable on or prior to the Closing Date shall have been paid, to the extent that invoices in customary detail have been received by the Company not later than the second Business Day before the Closing Date.
(d) The Closing Date shall have occurred on or before June 30, 2006.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the knowledge of Holdings or the Borrower, threatened before any Governmental Authority or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect or (ii) purports to materially and adversely affect the Transaction.
(f) All governmental authorizations and all third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods in connection with the Transaction shall have expired without any action being taken by any Governmental Authority, and no Law shall be applicable in the reasonable judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them.
(g) The Lenders shall have completed a due diligence investigation of the Borrower and its Subsidiaries in scope, and with results, satisfactory to the Lenders, and shall have been given such access to the management, records, books of account, contracts and properties of Holdings and its subsidiaries and shall have received such financial, business and other information regarding each of the foregoing Persons and businesses as they shall have requested, and no changes or developments shall have occurred, and no new or additional information shall have been received or discovered by the Administrative Agent or the Lenders regarding Holdings and it Subsidiaries or the transaction after May 10, 2006 that (A) either individually or in the aggregate could reasonably be expected to have a Material Adverse Effect or (B) purports to adversely affect the Facilities or any other aspect of the Transaction, and nothing shall have come to the attention of the Lenders during the course of such earlier date; provided due diligence investigation to lead them to believe (i) that (x) the representations and warranties contained Information Memorandum was or has become misleading, incorrect or incomplete in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) any material respect, and (bii) of Section 6.01 and (y) that the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be Transaction will have a condition precedent to the funding of any Loans. Without Material Adverse Effect; without limiting the generality of the provisions foregoing, the Lenders shall have been given such access to the management, records, books of account, contracts and properties of Holdings and its Subsidiaries as they shall have requested.
(h) After giving effect to the Transaction, including all Credit Extensions made in connection therewith, there shall as of the last paragraph Closing Date be no Revolving Credit Loans or L/C Obligations outstanding other than the Existing Letters of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement Credit.
(i) The Lenders shall be deemed to have consented tosatisfied with (i) the pro forma capital and ownership structure and the shareholder arrangements of Holdings and its Subsidiaries, approved including, without limitation, the charter and bylaws of Holdings and each such Subsidiary and each agreement or accepted or to be satisfied withinstrument relating thereto, each document or and (ii) the amount, tenor, ranking and other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.terms and conditions of all other equity and debt financings comprising part of the
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction on or prior to the Closing Date, of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantiesAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note;
(iii) executed counterparts of each of the certificate other Loan Documents;
(iv) such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly organized require (A) evidencing the identity, authority and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection this Agreement and the other Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any Documents to which such Loan Party is organized under the laws of any jurisdiction outside the United Statesa party, any comparable document provided for in the respective corporate laws of that jurisdiction), and (bB) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize authorizing the execution, delivery and performance by such Person of this Agreement and the other Loan Documents to be executed by which such Person Loan Party is a party;
(v) such documents and certifications as the consummation Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, validly existing and in good standing in its jurisdiction of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate)incorporation;
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) favorable opinion of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbencyJ▇▇▇▇ Day, signatures and authority of the officers, directors and attorneys of such Person authorized counsel to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s SubsidiariesParties, addressed to the Administrative Agent for and each Lender, as to the benefit of matters concerning the Administrative Agent Loan Parties and the Lenders, covering such legal matters Loan Documents as the Administrative Agent Required Lenders may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiariesrequest;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixvii) a certificate signed by a Responsible Officer of the Company Borrower certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, satisfied and (B) that, as of the Closing Date, there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred and (C) the current Debt RatingsEffect;
(xviii) evidence payoff letter evidencing that (1) the Solectron Existing Credit Agreement has been been, or concurrently with the Closing Date is is, being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09terminated; and
(xivix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least two (2) Business Days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that As of the Closing Date Transaction Date, since the date of the Audited Financial Statements, there shall have been consummated substantially concurrently with the Closing Date on the terms set forth no event or circumstance that has had or could reasonably be expected to have, either individually or in the Acquisition Agreement (without amendmentaggregate, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders)a Material Adverse Effect.
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document Closing Date shall have occurred on or in any document furnished at any time under or in connection herewith or therewithbefore December 30, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans2005. Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantiesAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note (to the extent requested at least three (3) Business Days prior to the Closing Date);
(iii) the certificate such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party or is to be a party;
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Loan Party is duly qualified to do business validly existing and in good standing under the laws in its jurisdiction of such jurisdiction)incorporation or formation, together with an English translation thereof (if appropriate)as applicable;
(v) a certificate favorable opinion of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇ ▇▇▇▇ & ▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. special New York counsel for FIL to the Loan Parties, addressed to the Administrative Agent and its Subsidiarieseach Lender, in customary form;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viiivi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixvii) a certificate signed by a Responsible Officer of the Company Borrower certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred Effect; and (C) a calculation of the current Debt RatingsConsolidated Net Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on September 30, 2021;
(x) evidence that (1viii) the Solectron Credit Agreement has been or concurrently with Audited Financial Statements and the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each unaudited financial statements of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections Borrower referred to in Section 5.095.05(a) and (b); and
(xivix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(bi) Upon the reasonable request of any Lender made at least ten (10) days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) days prior to the Closing Date and (ii) at least three (3) days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
(c) Any fees required to be paid on or before the Closing Date shall have been paidpaid on or substantially concurrently with the Closing Date provided that the payment of fees and expenses of counsel shall be subject to the receipt of an invoice with respect thereto at least two (2) Business Days prior to the Closing Date.
(cd) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrower shall have paid paid, on or substantially concurrently with the Closing Date, all fees, charges and disbursements of one counsel to the Administrative Agent and the Lenders collectively (directly to such counsel if requested by the Administrative Agent) to the extent invoiced in reasonable detail at least two (2) Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation effectiveness of each Lender to make this Agreement as an amendment and restatement of the initial Credit Extension hereunder on the Closing Date Existing Agreement is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officialsofficials or certain opinions of local counsel to Foreign Subsidiaries, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
(ii) Revolving Notes executed by the Borrowers in favor of each Lender requesting Notesa Revolving Note;
(iii) the certificate of incorporation (or comparable document) of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director Responsible Officer of each Loan Party certifying (a) as to the incumbency and genuineness of the signature of each officer of such Loan Party executing Loan Documents to which it is a party and certifying that attached thereto is a true true, correct and correct complete copy of (A) the by-laws articles or certificate of incorporation or formation (or comparable documentequivalent), as applicable, of such Loan Party and all amendments thereto, (B) the bylaws or other governing document of such Loan Party as in effect (or, if any such Loan Party is organized under on the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction)Closing Date, (bC) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors (or other governing body) of such Loan Party (or other comparable enabling action) authorizing and continuing in effect, which (i) authorize approving the transactions contemplated hereunder and the execution, delivery and performance by such Person of this Agreement and the other Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby which it is a party, and (iiD) designate the officers, directors and attorneys authorized so each certificate required to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriatebe delivered pursuant to Section 4.01(a)(iv);
(viiv) certificates as of a certificate (which may be combined with the certificate set forth in clause (v) above) recent date of the secretary or an assistant secretary good standing (or comparable officerits equivalent) or a director of each Loan Party certifying under the incumbencylaws of its jurisdiction of incorporation, signatures and authority of the officersorganization or formation (or equivalent), directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate)as applicable;
(viiv) favorable written opinions from of counsel and local counsel, as applicable, to the Company and each Designated ▇▇▇▇▇▇▇▇, addressed to the Administrative Agent and each Lender (or, in the case of the following certain opinions of local counsel for the Borrowers and FIL’s to Foreign Subsidiaries, addressed to the Administrative Agent for Agent), as to the benefit of matters concerning the Administrative Agent Company or such Designated Borrower, as applicable, and the Lenders, covering such legal matters Loan Documents as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory substance, including as to exceptions and qualifications, reasonably acceptable to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2vi) P▇▇▇opinions of counsel and local counsel, ▇▇▇▇▇ & N▇▇▇▇▇as applicable, Malaysian to such other Loan Parties, addressed to the Administrative Agent and each Lender (or, in the case of certain opinions of local counsel to Foreign Subsidiaries, addressed to the Administrative Agent), as to the matters concerning such Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and in form and substance, including Labuan) counsel for FIL as to exceptions and its Subsidiariesqualifications, reasonably acceptable to the Administrative Agent, to the extent necessary to satisfy the Opinion Loan Party Threshold as of the Closing Date;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viiivii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required from Governmental Authorities or other Persons in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effecteffect and shall not be subject to any conditions that are not acceptable to the Lenders), or (B) stating that no such consents, licenses or approvals are so required;
(ixviii) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, satisfied and (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect Effect;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has occurred been obtained and (C) the current Debt Ratingsis in effect;
(x) evidence that [reserved];
(xi) a certificate of a Responsible Officer of the Company as to the satisfaction of the Loan Party Threshold and the Opinion Loan Party Threshold, together with a calculation as of September 1) , 2019 as to such thresholds and the Solectron Credit Agreement has been or concurrently with the Closing Date is being terminated satisfaction thereof in form and all letters of credit thereunder cancelled or defeased in a manner detail satisfactory to the Administrative Agent;
(A) Upon the reasonable request of any Lender made at least 3 days prior to the Closing Date, (2) all Liens securing obligations under the Company shall have provided to such credit agreements have been or concurrently Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 2 days prior to the Closing Date are being released and (3B) arrangements satisfactory at least 2 days prior to the Administrative Agent relating Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to the Notes Repayments have been made;
(xi) evidence satisfactory each Lender that so requests, a Beneficial Ownership Certification in relation to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09such Loan Party; and
(xivxiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction or waiver in accordance with Section 11.01 of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Third Restatement Date (or, in the case of certificates of governmental officials, a recent date before the Closing Third Restatement Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:):
(i) executed counterparts of this Agreement and the GuarantiesAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrowers, unless otherwise agreed;
(ii) Notes a Note executed by the Borrowers in favor of Bank of America and each other Lender requesting Notesa Note;
(iii) the Ancillary Document Confirmations;
(iv) completed requests for information, dated on or before the date of the initial Credit Extension, listing all other effective financing statements filed in all jurisdictions that the Administrative Agent may deem necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement that name any Loan Party as debtor, together with copies of such financing statements as have been filed since the Original Closing Date;
(v) [reserved];
(vi) a certificate of an authorized officer of each Loan Party, attaching: (a) either (x) a copy of the articles or certificate of incorporation (or comparable document) of each such Loan Party certified as of a recent date by the Secretary of State of the state of organization (or comparable public officialofficial in the United Kingdom and Canada) of its jurisdiction such Loan Party or (y) a certification by a Responsible Officer of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, Loan Party that no changes have been made to such other evidence as articles or certificate since they were last provided to the Administrative Agent may request to establish that such Person is duly organized and existing under the laws of such jurisdiction)Agent, in either case, together with an English translation thereof (if appropriate);
(iv) certificates of such official attesting to the extent such jurisdiction has the legal concept of a corporation being in valid existence, good standing and a Governmental Authority qualification to engage in business in such Loan Party’s jurisdiction issues any evidence of such good standing, a Certificate of Good Standing organization; (b) either (x) the bylaws or operating agreement (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any equivalent such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdictionconstitutional document), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) as applicable, of such Loan Party as in effect on the date of such certification or (ory) a certification by a Responsible Officer of such Loan Party that no changes have been made to such bylaws or operating agreement since they were last provided to the Administrative Agent; and (c) such certificates of resolutions or other action, if any incumbency and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (a party or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents is to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate)party;
(vii) a favorable written opinions from each opinion of Ropes & ▇▇▇▇ LLP, counsel to the following counsel for the Borrowers and FIL’s SubsidiariesLoan Parties, addressed to the Administrative Agent for and each Lender, as to such matters concerning the benefit of the Administrative Agent Loan Parties and the Lenders, covering such legal matters Loan Documents as the Administrative Agent may reasonably request and otherwise request, in form and substance reasonably satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viii) a certificate favorable opinion of a Responsible Officer local counsel to the Loan Parties in each jurisdiction of each organization of any Loan Party either (A) attaching copies of all consentsrequested by the Administrative Agent, licenses addressed to the Administrative Agent and approvals required in connection with each Lender, as to such matters concerning the execution, delivery Loan Parties and performance by such Loan Party and the validity against such Loan Party of the Loan Documents as the Administrative Agent may reasonably request, in form and substance reasonably satisfactory to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so requiredthe Administrative Agent;
(ix) the Security Agreement, duly executed by each Loan Party;
(x) [reserved];
(xi) a certificate certificate, substantially in the form of Exhibit K, signed by a Responsible Officer of the Company Lead Borrower certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, and (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had, either individually or in the aggregate, a Material Adverse Effect has occurred and (C) the current Debt Ratings;
(x) evidence that (1) the Solectron Credit Agreement has been or concurrently with is continuing on the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated IndenturesDate;
(xii) a certificate, substantially in the executed copy form of Exhibit L, from Holdings attesting to the Solvency of the Acquisition Agreement Loan Parties and all other related documentation (without amendment, modification or waiver thereof which is adverse their Subsidiaries on a consolidated basis before and after giving effect to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders)Transaction, from its chief financial officer or other Responsible Officer;
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders any Lender reasonably may require.
(bi) Any All fees required to be paid to the Administrative Agent and the Arrangers on or before the Closing Third Restatement Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Third Restatement Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent required to be paid on the Third Restatement Date and invoiced at least one (1) Business Day prior to or on the Closing Third Restatement Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrowers and the Administrative Agent).
(di) Evidence that Upon the Closing Date Transaction reasonable request of any Lender made at least ten (10) days prior to the Third Restatement Date, the Borrowers shall have been consummated substantially concurrently provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Closing Date on the terms set forth Act, in the Acquisition Agreement each case at least three (without amendment, modification or waiver thereof which is adverse 3) days prior to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V Third Restatement Date, and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be least three (A3) in days prior to the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Third Restatement Date, except any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed so requests, a Beneficial Ownership Certification in relation to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoBorrower.
Appears in 1 contract
Sources: Credit Agreement (Novanta Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension available to the Borrower hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer (or, with respect to any Loan Party other than the Borrower, by a Secretary or other Person duly appointed as an attorney-in-fact by a power of attorney granted by, or pursuant to an authorization of, the board of directors or similar body of such Loan Party) of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantiesGuaranty Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrower;
(ii) Notes executed by the Borrowers Borrower in favor of each Lender requesting Notesthat requested Notes at least two Business Days prior to the Closing Date;
(iii) the certificate such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party or is to be a party;
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence certifications as the Administrative Agent or its counsel may reasonably request to establish evidence that such Person each Loan Party is duly qualified to do business organized or formed, validly existing and in good standing under the laws in its jurisdiction of such jurisdiction), together with an English translation thereof (if appropriate)organization;
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, opinion (addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as Lenders and dated the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
Closing Date) of (1A) C▇▇▇▇ ▇. ▇▇▇▇▇▇, Min-house counsel to the Borrower and the other Loan Parties organized or existing under the laws of the United States or any state thereof, substantially in the form of Exhibit F-1, (B) ▇▇▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Colt & Mosle LLPlocal counsel to the Parent, U.S. counsel for FIL and its Subsidiaries;
substantially in the form of Exhibit F-2, (2C) P▇▇▇▇▇▇ Goodinge, in-house counsel to the Loan Parties organized or existing under the laws of the United Kingdom, substantially in the form of Exhibit F-3, and (D) ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇▇ Amsterdam N.V., Singapore local counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ Bto ▇▇▇▇▇▇ LLPNetherlands Holdings B.V., Canadian substantially in the form of Exhibit F-4, and, in the case of each such opinion required by this clause (v), covering such other matters relating to the Loan Parties, the Loan Documents or the transactions contemplated hereby as the Required Lenders shall reasonably request, and the Parent and the Borrower hereby request such counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiariesto deliver such opinions;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixvi) a certificate signed by a Responsible Officer of the Company Parent and the Borrower certifying the current Debt Ratings;
(vii) if applicable, the funding indemnity letter referenced in Section 2.02(f), which shall have been received within the time prior to the Closing Date as required in such section; and
(viii) a certificate signed by a Responsible Officer of the Parent certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, (B) no Acquired Business that since December 31, 2009 there shall not have occurred any events or changes that, individually or in the aggregate, have had or could reasonably be expected to have a Material Adverse Effect has occurred Effect, and (C) the current Debt Ratings;
(x) evidence that (1) the Solectron Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) date hereof there is no litigation in any court or before any arbitrator or Governmental Authority, that could reasonably be expected, individually or in the executed copy aggregate, to impose materially adverse conditions, or which could reasonably be expected, individually or in the aggregate, to have a material adverse effect, upon this Agreement or any of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may requiretransactions contemplated hereby.
(bi) Any All fees required to be paid to the Administrative Agent and/or any of the Book Managers on or before the Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel counsel, if requested by the Administrative Agent) to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrower and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender Lender, unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantiesAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the certificate Administrative Agent may require evidencing the identity, authority and capacity of incorporation each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(or comparable documentiv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the Secretary appropriate Governmental Authority of State (the state or comparable public official) other jurisdiction of its jurisdiction incorporation or organization, where applicable, and certified by a secretary or assistant secretary of organization (or, if any such Person is organized under Borrower to be true and correct as of the laws of any jurisdiction outside the United States, Closing Date and such other evidence documents and certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Loan Party is duly organized or formed, and existing under that each of the laws of such jurisdiction)Loan Parties is validly existing, together with an English translation thereof (if appropriate);
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority qualified to engage in such business in each jurisdiction issues any evidence where its ownership, lease or operation of such good standing, a Certificate of Good Standing (properties or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) conduct of its jurisdiction of organization (or, if any business requires such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)qualification;
(v) a certificate favorable opinion of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇ ▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL ▇ and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL to the Loan Parties, addressed to the Administrative Agent and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányieach Lender, Hungarian counsel for FIL as to such matters concerning the Loan Parties and its Subsidiariesthe Loan Documents as the Administrative Agent may request;
(viiivi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixvii) a certificate signed by a Responsible Officer of the Company Borrower certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a), (b) and Section 4.02(a(c) have been satisfied, (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred Effect; and (C) a calculation of the current Debt RatingsConsolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) evidence that (1) a certificate executed by a Responsible Officer of the Solectron Credit Agreement has been or concurrently with Borrower as of the Closing Date is being terminated Date, in form and all letters of credit thereunder cancelled or defeased in a manner substance satisfactory to the Administrative Agent, regarding the Solvency of (2A) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and Borrower, (3B) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
other Loan Parties, and (xiiC) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09Parties on a consolidated basis; and
(xivxi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paidpaid (provided such fees may be paid from the proceeds of such initial Credit Extension).
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrower and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V Borrower and (ii) each other Loan Party contained in each Section 5 or any other Loan Document Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date.
(e) No Default shall exist, except or would result from, such proposed Credit Extension or from the application of the proceeds thereof.
(f) There shall not have occurred any event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(g) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the extent knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that such representations could reasonably be expected to have a Material Adverse Effect.
(h) The Parent REIT and warranties specifically refer to an earlier date, in which case they the Borrower shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that have entered into (xi) the representations US Bank Facility, the PNC Facility, the Capital One Facility and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) US Bank Lessee Line of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.Credit and
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Borrower, each dated the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantiesAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the certificate of incorporation (or comparable document) of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence Borrower as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that such Person act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party;
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence certifications as the Administrative Agent may request reasonably require to establish evidence that such Person the Borrower is duly qualified to do business organized or formed, and that the Borrower is validly existing, in good standing under and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the laws conduct of its business requires such jurisdiction)qualification, together with an English translation thereof (if appropriate)except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy Responsible Officer of the by-laws Borrower (or comparable documentA) of such Loan Party as stating that the representations and warranties contained in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto Article V are true and correct copies of resolutions duly adopted by the board of directors on and as of such Loan Party date, as though made on and as of such date; (B) stating there is no action, suit, investigation or other comparable enabling action) and continuing proceeding pending or threatened in effect, which writing in any court or before any arbitrator or Governmental Authority that purports (i) authorize to materially and adversely affect the executionBorrower or its Subsidiaries, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and or (ii) designate to affect any transaction contemplated hereby or the officers, directors and attorneys authorized so ability of the Borrower to execute, deliver and perform on behalf of such Person its obligations under this Agreement; and (cC) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viii) a certificate of a Responsible Officer of each Loan Party either (Ai) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party the Borrower and the validity against such Loan Party the Borrower of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (Bii) stating that no such consents, licenses or approvals are so required;
(ixvi) a certificate signed by a Responsible Officer of the Company Borrower certifying (A) that there has been no event or circumstance since the conditions specified date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in Section 4.01(e) the aggregate, a Material Adverse Effect; and Section 4.02(a) have been satisfied, (B) no Acquired Business Material Adverse Effect has occurred and (C) the current Debt Ratings;
(xvii) evidence that the 2012 Credit Agreement has been amended for the purpose of (1A) reducing the Solectron facility provided thereunder to $1,000,000,000 and (B) making certain terms of the 2012 Credit Facility consistent with this Agreement (other than pricing and maturity), as reasonably determined by the Administrative Agent;
(viii) evidence that the Existing Credit Agreement has been or concurrently with the Closing Effective Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09terminated; and
(xivix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the applicable L/C Issuers, the Swing Line Lender or the Required Lenders reasonably may require.
(b) a favorable opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender in the form attached hereto as Exhibit F.
(c) Any fees required to be paid on or before the Closing Effective Date shall have been paid.
(cd) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrower and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Effective Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation effectiveness of each Lender to make the initial Credit Extension hereunder on the Closing Date this Agreement is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies other electronic image scan transmission (e.g., “pdf” or “tif ” via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable), each dated the Closing Third Restatement Date (or, in the case of certificates of governmental officials, a recent date before the Closing Third Restatement Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement each properly executed by a Responsible Officer of the signing Loan Party and the Guaranties, Lenders sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyLead Borrower;
(ii) Notes a Note executed by the Borrowers in favor of each Lender requesting Notesa Note;
(iii) the certificate such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing (A) the authority of each Loan Party to establish that enter into this Agreement and the other Loan Documents to which such Person Loan Party is duly organized a party or is to become a party and existing under (B) the laws identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such jurisdiction), together with an English translation thereof (if appropriate)Loan Party is a party or is to become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Agent may reasonably require to the extent such jurisdiction has the legal concept of a corporation being evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and a Governmental Authority qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction issues any evidence of such good standing, could not reasonably be expected to have a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)Material Adverse Effect;
(v) a certificate favorable opinion of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇Bass, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇PLC, Singapore counsel for FIL to the Loan Parties, addressed to the Agent and its Subsidiarieseach Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Agent may reasonably request;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viiivi) a certificate of a Responsible Officer of each Loan Party either the Lead Borrower certifying (A) attaching copies that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of all the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties as of the Third Restatement Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses and or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating or (2) that all such consents, licenses and approvals shall be have been obtained and are in full force and effect; evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Agent required under the Loan Documents have been obtained and are in effect; the Security Documents and certificates evidencing any stock being pledged thereunder, or together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(Bvii) stating that no all other Loan Documents, each duly executed by the applicable Loan Parties;
(viii) an updated commercial finance exam, the results of which are satisfactory to the Agent (which commercial finance exam will not be counted toward such consents, licenses or approvals are so requiredcommercial finance exam limits in Section 6.10(b));
(ix) a certificate signed by a Responsible Officer results of the Company certifying (A) that the conditions specified in Section 4.01(e) and Section 4.02(a) have been satisfied, (B) no Acquired Business Material Adverse Effect has occurred and (C) the current Debt Ratings;
(x) searches or other evidence that (1) the Solectron Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Loan Parties, (2) all except for Permitted Encumbrances and Liens securing obligations under such credit for which termination statements and releases or subordination agreements have been or concurrently with satisfactory to the Closing Date Agent are being released and (3) tendered concurrently herewith or other arrangements satisfactory to the Administrative Agent relating to for the Notes Repayments delivery of such termination statements and releases have been made;
(xiA) evidence satisfactory all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded to the Administrative Agent that satisfaction of the Obligations Agent, (B) the Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.12 hereof shall have been obtained, and (C) control agreements with respect to the extent constituting principal Loan Parties’ securities and interest) are “Designated Senior Debt” for purposes of investment accounts have been obtained; and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any After giving effect to (i) any Loans outstanding hereunder, (ii) any charges to the Loan Account made in connection herewith and (iii) all Existing Letters of Credit and any other Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be greater than $25,000,000 (calculated without giving effect to clause (a) of the Loan Cap).
(c) The Agent shall have received a Borrowing Base Certificate dated the Third Restatement Date, relating to the period ended on February 25, 2023, and executed by a Responsible Officer of the Lead Borrower.
(d) The Agent shall be reasonably satisfied that any financial statements delivered to it and the Lenders fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the Audited Financial Statements.
(e) The Agent and the Lenders shall have received and be satisfied with (i) updated projections through the Loan Parties’ Fiscal Year ending February 3, 2024, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP and consistent with the Loan Parties’ then current practices and (b) such other information (financial or otherwise) reasonably requested by the Agent.
(f) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(g) There shall not have occurred any default of any Material Contract of any Loan Party which could reasonably be expected to have a Material Adverse Effect.
(h) The consummation of the transactions contemplated hereby shall not violate any Law or any Organization Document.
(i) All fees required to be paid to the Agent on or before the Closing Third Restatement Date shall have been paidpaid in full, and all fees required to be paid to the Lenders on or before the Third Restatement Date shall have been paid in full.
(cj) Unless waived by the Administrative Agent and subject to the Fee Letter, the Company The Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Third Restatement Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings Third Restatement Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrowers and the Administrative Agent).
(dk) Evidence that The Agent and the Closing Date Transaction Lenders shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations received all documentation and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or information so requested in connection herewith or therewithwith applicable “know your customer” and anti-money-laundering rules and regulations, shall be (A) in including, without limitation, the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respectsAct, in each case on and as of at least ten (10) days prior to the Closing Third Restatement Date. At least five (5) days prior to the Third Restatement Date, except any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower.
(l) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any LoansThird Restatement Date. Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented Consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented Consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Third Restatement Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Kirkland's, Inc)
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt Agent shall have received all of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement executed by the Borrower, the Guarantor and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyLender;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note;
(iii) counterparts of the Guaranty executed by the Guarantor;
(iv) such certificate of incorporation (resolutions or comparable document) other action, incumbency certificate and/or other certificates of the Secretary or Assistant Secretary of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence General Partner as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party;
(ivv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Loan Party and the General Partners are duly organized or formed, and that each Loan Party and each General Partner is duly qualified to do business and validly existing, in good standing under the laws and qualified to engage in business in its jurisdiction of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate)formation;
(vi) a certificate favorable opinion of (which may be combined with the certificate set forth in clause (vA) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL to each Loan Party and its Subsidiaries; and
the General Partners, and (6B) N▇▇▇ ▇▇ Trócsányithe Vice President, Hungarian counsel for FIL General Counsel and its SubsidiariesSecretary of the MLP General Partner, in each case in form and substance satisfactory to Administrative Agent and the Lenders, addressed to the Administrative Agent and each Lender;
(viiivii) a certificate of a Responsible Officer of each Loan Party either Party, (A) attaching copies of either (i) certifying that all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be are in full force and effect, or (Bii) stating that no such consents, licenses or approvals are so required;; and (B) certifying as to the following matters:
(ix) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Section 4.01(e) and Section 4.02(a) have been satisfied, (B) no Acquired Business Material Adverse Effect has occurred and (C) the current Debt Ratings;
(x) evidence that (1) the Solectron Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee Letter, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained set forth in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, this Agreement shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case respects (except that such materiality qualifier shall not be applicable to the extent that any such representation or warranty is qualified by materiality) on and as of the Closing Date, except both before and after giving effect to any Credit Extension being made on such date;
(B) no Default shall exist on the extent that Closing Date, before and after giving effect to any Credit Extension being made on such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided and
(C) there does not exist any pending or threatened (i) proceeding under any Debtor Relief Law in respect of any Loan Party or any Subsidiary, or (ii) litigation or other proceeding in respect of the initial Credit Extension or that could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xviii) all amounts, if any, then owed under the representations and warranties contained Existing Credit Agreement shall have been or shall concurrently be repaid in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and full or refinanced with Loans under this Agreement;
(b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the The Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoInitial Financial Statements.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Companyother Loan Document;
(ii) Notes as to each Borrower, a Note executed by the Borrowers such Borrower in favor of each Lender requesting Notes;
(iii) searches of filings made under the certificate UCC, the PPSA, the Bank Act (Canada) or other applicable Law, in each case in the jurisdiction of incorporation (or comparable document) formation of each Loan Party certified and each other jurisdiction reasonably deemed appropriate by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)Agent;
(iv) to such UCC and PPSA financing statements or similar documents required under any other applicable Law in the extent such jurisdiction has the legal concept name of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its for each appropriate jurisdiction of organization (oras is necessary, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as in the Administrative Agent may request Agent’s reasonable discretion, to establish that such Person is duly qualified to do business and perfect the Administrative Agent’s security interest in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)Collateral;
(v) a certificate all certificates evidencing any certificated Equity Interests pledged to the Administrative Agent pursuant to the Security Agreements, together with duly executed in blank, undated stock powers attached thereto (unless, with respect to the pledged Equity Interests of any Non-U.S. Subsidiary, such stock powers are deemed unnecessary by the Administrative Agent in its reasonable discretion under the law of the secretary or an assistant secretary (or comparable officer) or a director jurisdiction of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation organization of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) searches of the secretary or an assistant secretary (or comparable officer) or a director ownership of, and Liens on, United States and Canadian intellectual property registrations and applications of each Loan Party certifying in the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate)appropriate governmental offices;
(vii) favorable written opinions from each duly executed notices of grant of security interest in the form required by the Security Agreements as are necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the United States and Canadian intellectual property registrations and applications of the following counsel for the Borrowers and FIL’s SubsidiariesLoan Parties;
(viii) such certificates of resolutions or other action, addressed to the Administrative Agent for the benefit incumbency certificates and/or other certificates of the Administrative Agent and the Lenders, covering such legal matters Responsible Officers of each Loan Party as the Administrative Agent may reasonably request require evidencing the identity, authority and otherwise capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in form connection with this Agreement and substance satisfactory the other Loan Documents to which such Loan Party is a party;
(ix) such documents and certifications as the Administrative Agent:Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrowers and the Restricted Subsidiaries is validly existing and in good standing in its jurisdiction of organization or formation;
(1x) Ca favorable opinion of each of (A) ▇▇▇▇▇, M▇ & ▇▇▇▇▇-▇ ▇▇▇▇ ▇▇▇▇▇▇▇, Colt & Mosle ▇ LLP, U.S. counsel for FIL and its Subsidiaries;
to the Loan Parties, (2B) PBlake, ▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel to the Loan Parties and (C) local counsel to the Loan Parties in each other jurisdiction for FIL which the Administrative Agent has requested a legal opinion, in each case addressed to the Administrative Agent and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányieach Lender, Hungarian counsel for FIL as to such matters concerning the Loan Parties and its Subsidiariesthe Loan Documents as the Administrative Agent may reasonably request;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixxi) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Section 4.01(eSections 4.01(b), 4.01(c), 4.02(a) and Section 4.02(a4.02(b) have been satisfiedsatisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xii) a certificate signed by the chief financial officer of the Company certifying that the Company and its Subsidiaries are Solvent on a consolidated basis after giving effect to the Credit Extensions to be made hereunder on the Closing Date;
(xiii) a perfection certificate in form and substance reasonably satisfactory to the Administrative Agent and signed by a Responsible Officer of the Company;
(xiv) evidence reasonably satisfactory to the Administrative Agent that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and
(xv) copies of (A) the audited consolidated balance sheets of the Company and its Subsidiaries for the fiscal years ended December 31, 2015, 2016 and 2017, and the related consolidated statements of operations, comprehensive income, changes in equity and cash flows for such fiscal years of the Company and its Subsidiaries, including the notes thereto, (B) no Acquired Business Material Adverse Effect has occurred unaudited consolidated financial statements of the Company and its Subsidiaries for each fiscal quarter ending on or after March 31, 2018 and at least sixty (C60) days prior to the current Debt Ratings;Closing Date, including balance sheets and statements of income or operations, shareholders’ equity and cash flows (the “Interim Financial Statements”) and annual projections for the Company and its Subsidiaries for the five (5) full fiscal years ending after the Closing Date.
(xb) evidence that (1) Substantially concurrently herewith, all obligations under the Solectron Existing Credit Agreement shall have been repaid in full (other than contingent indemnification obligations for which no claim or demand has yet been or concurrently with the Closing Date is being made), all commitments thereunder shall have been terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements the same shall have been released (or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments for such release shall have been made;).
(xic) evidence There shall not exist any action, suit, investigation or proceeding pending or, to the knowledge of the Company or any other Loan Party, threatened in writing in any court or before any arbitrator or governmental authority that would reasonably be expected to have a Material Adverse Effect.
(d) The Administrative Agent and the Lenders shall have completed due diligence of the Loan Parties and their respective Subsidiaries in scope, and with results, reasonably satisfactory to the Administrative Agent that and the Obligations Lenders, including OFAC, FCPA and Corruption of Foreign Public Officials Act (Canada).
(e) The Administrative Agent and the Lenders shall have received all documentation and other information with respect to each Loan Party requested in writing at least five (5) Business Days prior to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined Closing Date by the Administrative Agent) Agent that any Lender determines is required by regulatory authorities under applicable Law, including without limitation the prior consent of PATRIOT Act, the Lenders);
(xiii) true correct Canadian AML Acts and complete copies of the Financial Statementsapplicable U.S. and Canadian law regarding anti-money laundering, Closing Date Pro Forma Consolidated Balance Sheet anti-terrorist financing, government sanction and Projections referred to in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require“know your customer” matters.
(bf) Any fees required At least three (3) Business Days prior to be paid on or before the Closing Date Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have been paiddelivered to each Lender that so requests a Beneficial Ownership Certification in relation to such Borrower.
(cg) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company shall have paid (i) all fees and expenses required to be paid on the Closing Date pursuant to the Fee Letter or other writing between or among the Company and any lender(s) and (ii) all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least three (3) Business Days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings and as shall be identified in the invoice provided at least three (3) Business Days prior to the Closing Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Celestica Inc)
Conditions of Initial Credit Extension. The occurrence of the Closing Date, the initial effectiveness of this Agreement and obligation of each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, (as applicableor such Loan Party’s sole or managing member, manager, development manager, general partner, or other comparable constituent entity), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantiesAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note;
(iii) the certificate of incorporation (or comparable document) of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such Organization Documents and other evidence as the Administrative Agent may request to establish that such Person is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies certificates of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viii) a certificate incumbency certificates and/or other certificates of a Responsible Officer of each Loan Party either (Aor such Loan Party’s sole or managing member, manager, development manager, general partner, or other comparable constituent entity) attaching copies as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of all consents, licenses and approvals required each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the execution, delivery and performance by other Loan Documents to which such Loan Party is a party;
(iv) such other documents and certifications as the validity against such Administrative Agent may reasonably require to evidence that each Loan Party is validly existing, in good standing and qualified to engage in business in the jurisdiction of its incorporation or organization;
(v) the favorable opinions of ▇▇▇▇ & Spalding LLP, counsel to the Loan Parties, and local counsel to the Loan Parties, acceptable to the Administrative Agent addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent, covering enforceability of the Loan Documents and other customary matters to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so requiredagreed upon;
(ixvi) a certificate signed by a Responsible Officer of the Company Borrower certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred Effect; and (C) the current Debt Ratings;
calculation of the Consolidated Leverage Ratio as of March 31, 2022 (x) evidence that (1) the Solectron prepared on a pro forma basis to take into account Credit Agreement has been or concurrently with Extensions made on the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the LendersDate);
(xiiivii) true correct and complete copies a duly completed Compliance Certificate dated as of the Financial Statementslast day of the fiscal quarter of the Borrower ended March 31, 2022 (prepared on a pro forma basis to take into account Credit Extensions made on the Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; andDate), signed by a Responsible Officer of the Parent;
(xivviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuers, or the Required Lenders reasonably may require; and 66 4887-6582-6072 v.11
(ix) (A) upon the reasonable request of any Lender made at least ten (10) days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case at least five (5) days prior to the Closing Date and (B) at least three (3) days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
(b) Any fees required to be paid to the Administrative Agent, the Arrangers or any other Lender (whether pursuant to the Fee Letter or otherwise) on or before the Closing Date shall have been paidpaid (including, without limitation, in respect of breakage or redeployment costs incurred in connection with prepayments).
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrower shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs of the Administrative Agent as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrower and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers Loan Parties contained in Article V and (ii) each or any other Loan Party Document, or which are contained in each any other Loan Document or in any document furnished at any time under or in connection herewith or therewiththis Agreement, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects (except, if a qualifier relating to materiality or Material Adverse Effect or a similar concept already applies, such representation or warranty shall be required to be true and correct in all respects, in each case ) on and as of the Closing Date.
(e) No Default shall exist and be continuing as of the Closing Date.
(f) There shall not have occurred a material adverse change since December 31, except to 2021 in the extent that such representations and warranties specifically refer to an earlier datebusiness, assets, liabilities (actual or contingent), operations or financial condition of the Loan Parties taken as a whole.
(g) There shall not exist any action, suit, investigation, or proceeding, pending or threatened, in which case they any court or before any arbitrator or governmental authority that purports to affect the Loan Parties or any transaction contemplated hereby, or that would reasonably be expected to have a Material Adverse Effect.
(h) The Loan Parties shall be true in compliance with all existing financial obligations and correct or true and correct in all material respectsContractual Obligations, as the case may befailure to comply with which would reasonably be expected to have a Material Adverse Effect.
(i) The Loan Documents must not violate any provision of Applicable Laws, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding constitutive documents, orders of any Loans. Without limiting the generality of Governmental Authority, the provisions of any material agreement to which any Loan Party may be subject or result in the last paragraph creation or imposition of Section 9.03, for purposes any Lien on the assets or property of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoany Loan Party.
Appears in 1 contract
Sources: Fifth Amended and Restated Credit Agreement (Cousins Properties Inc)
Conditions of Initial Credit Extension. The obligation effectiveness of each Lender to make this Agreement and the initial amendment and restatement of the Existing Credit Extension hereunder on the Closing Date Agreement is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of (A) this Agreement sufficient in number for distribution to the Administrative Agent and its counsel, each Lender and the GuarantiesCompany and (B) (1) the Security Agreement, (2) the Pledge Agreement, (3) the Escrow and Security Agreement and (4) each Guaranty required to be delivered in connection herewith, in each case, sufficient in number for distribution to the Administrative Agent, each Lender the Administrative Agent’s counsel and the Company;
(ii) Notes (A) a Revolving Note executed by the Company in favor of each Lender requesting a Revolving Note, (B) a New Vehicle Floorplan Note executed by the New Vehicle Borrowers in favor of each Lender requesting Notesa New Vehicle Floorplan Note, and (C) a Used Vehicle Floorplan Note executed by the Used Vehicle Borrowers in favor of each Lender requesting a Used Vehicle Floorplan Note;
(iii) the certificate such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);a party; 113113
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Loan Party is duly qualified to do business organized or formed, and that each Loan Party is validly existing, in good standing under and qualified to engage in business in the laws respective jurisdictions specified in Schedule 4.01, which includes each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such jurisdiction)qualification, together with an English translation thereof (if appropriate)except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a certificate favorable opinion of ▇▇▇▇▇ Day, counsel to the secretary or an assistant secretary (or comparable officer) or a director of Loan Parties, addressed to the Administrative Agent and each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (orLender, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that form attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate)as Exhibit L;
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) favorable opinion of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized local counsel to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers Parties in Florida and FIL’s SubsidiariesNorth Carolina, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise each Lender in form and substance reasonably satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viiivii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixviii) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, and (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred and (C) as to the current Debt Ratingsabsence of any action, suit, investigation or proceeding pending or, to the knowledge of the Company, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect;
(ix) a certificate signed by the chief financial officer, treasurer or chief accounting officer of the Company, certifying that the Company individually is Solvent and the Loan Parties taken as a whole are Solvent, in each case after giving effect to this Agreement and the other Loan Documents and the Indebtedness pursuant hereto and thereto;
(x) evidence that (1) the Solectron Credit Agreement has been or concurrently with the Closing Date is being terminated a duly completed Compliance Certificate in form and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements substance satisfactory to the Administrative Agent relating to as of the Notes Repayments have been madelast day of the fiscal quarter of the Company ended on June 30, 2019, signed by a Responsible Officer of the Company;
(xi) evidence a duly completed Revolving Borrowing Base Certificate in form and substance reasonably satisfactory to the Administrative Agent that dated as of the Obligations (Closing Date certifying as to the extent constituting principal and interest) are “Designated Senior Debt” for purposes Revolving Borrowing Base as of and as defined in each June 30, 2019, signed by a Responsible Officer of the Subordinated IndenturesCompany;
(xii) a duly completed Used Vehicle Floorplan Borrowing Base Certificate, in form and substance reasonably satisfactory to the executed copy Administrative Agent dated as of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse Closing Date certifying as to the Lenders (Used Vehicle Floorplan Borrowing Base as reasonably determined of August 31, 2019, signed by the Administrative Agent) without the prior consent a Responsible Officer of the Lenders)Company;
(xiii) true correct a certificate of a Responsible Officer of the Company evidencing that no consents or waivers are required pursuant to any Franchise Agreement or Framework Agreement that have not been obtained;
(xiv) duly executed consents and complete waivers required pursuant to any Franchise Agreement or Framework Agreement (if any);
(xv) a certificate of a Responsible Officer of the Company certifying that there have been no changes to the indenture delivered on and as in effect as of July 25, 2016 except (a) the 114114 addition of more guarantors and (b) changes reflected in supplements or amendments publicly filed with the SEC in accordance with SEC requirements;
(xvi) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, including endorsements naming the Administrative Agent (on behalf of the Secured Parties ) as an additional insured or lender’s loss payee, as the case may be, on all insurance policies maintained with respect to properties of the Company or any Loan Party constituting part of the Collateral;
(xvii) consolidated balance sheets for the Company and each Subsidiary as at the end of June 30, 2019, and the related consolidated statements of income or operations, all in reasonable detail prepared by management of the Company or such Subsidiary, including designations of New Vehicle and Used Vehicle inventories and associated lien payoffs;
(xviii) forecasts (including assumptions) prepared by the management of the Company of consolidated balance sheets, income statements and cash flow statements for the Company and its Subsidiaries, in each case in form and substance reasonably satisfactory to the Administrative Agent for each of the first five fiscal years following the Closing Date;
(xix) delivery by the Company and each applicable Loan Party owning any Equity Interests required to be pledged (if any) pursuant to this Agreement or the Pledge Agreement of all stock certificates evidencing such pledged Equity Interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto and (y) delivery by the Company and each other applicable Loan Party owning any Equity Interests required to be delivered in escrow pursuant to the Escrow and Security Agreement of all stock certificates evidencing such Equity Interests
(xx) UCC financing statements for filing in all places required by applicable law to perfect the Liens of the Administrative Agent for the benefit of the Secured Parties under the Security Instruments as a perfected Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements;
(xxi) UCC search results with respect to the Borrowers showing only Liens acceptable to the Administrative Agent (or pursuant to which arrangements reasonably satisfactory to the Administrative Agent shall have been made to remove any unacceptable Liens promptly after the Closing Date);
(xxii) a certificate signed by a Responsible Officer of the Company certifying as to the identity of any Unrestricted Subsidiaries and that such Subsidiaries meet the requirements to be Unrestricted Subsidiaries;
(xxiii) with respect to any Eligible Borrowing Base Real Estate that is reflected in the Revolving Borrowing Base Certificate delivered pursuant to clause (xi) above, each of the following, in form and substance reasonably acceptable to the Administrative Agent: (A) a FIRREA-conforming appraisal, (B) a Phase I (and, if reasonably requested by the Administrative Agent, a Phase II) environmental report for such property, and (C) such other reports or certifications as related to such Eligible Borrowing Base Real Estate as the Administrative Agent may reasonably request;
(xxiv) Landlord Waivers, if any, that have been received by the Company or any Subsidiary on or prior to the Closing Date;
(xxv) copies of any executed Service Loaner Intercreditor Agreement with respect to any Permitted Service Loaner Indebtedness and the Financial StatementsFMCC Intercreditor Agreement; in each case as in effect as the date hereof, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred if required pursuant to in Section 5.09the terms hereof, any additional Service Loaner Intercreditor Agreements; 115115
(xxvi) a completed environmental questionnaire covering all Loan Parties’ properties (whether leased or owned);
(xxvii) a form FR U-1 executed by the Company and a duly authorized representative of the Administrative Agent; and
(xivxxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, any L/C Issuer, the Revolving Swing Line Lender, the New Vehicle Floorplan Swing Line Lender, the Used Vehicle Floorplan Swing Line Lender or the Required Lenders reasonably may require.
(b) (i) Upon the reasonable request of any Lender made at least ten (10) days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least five (5) Business Days prior to the Closing Date and (ii) at least five (5) Business Days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
(c) Any fees required to be paid on or before the Closing Date shall have been paid.
(cd) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company shall have paid all accrued fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantiesGuaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
(ii) USD/MC Loan Notes executed by the Borrowers (other than the Designated Mexican Borrowers) in favor of each Lender requesting USD/MC Loan Notes;
(iii) the certificate such powers-of-attorney, certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party;
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Loan Party is duly qualified to do business organized or formed, and that each Loan Party is validly existing and in good standing (if applicable) under the laws of such jurisdiction), together with an English translation thereof (if appropriate)its jurisdiction of organization;
(v) a certificate favorable opinions of the secretary or an assistant secretary counsel (or comparable officerincluding local counsel, as applicable) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of to the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s SubsidiariesParties, addressed to the Administrative Agent for and each Lender, as to such customary matters concerning the benefit Loan Parties, the Loan Documents and such other matters as the Administrative Agent shall reasonably request (which such opinions shall expressly permit reliance by permitted successors and assigns of the Administrative Agent and the Lenders, covering such legal matters Lenders as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiariesprovided herein);
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viiivi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixvii) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, ; (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred Effect; and (C) a calculation of the current Debt RatingsConsolidated Leverage Ratio as of the last day of the fiscal quarter of the Company most recently ended prior to the Closing Date;
(xviii) evidence that (1) the Solectron Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements the Existing Credit Agreement have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09released; and
(xivix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least three (3) Business Days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that The Administrative Agent and each Lender shall have received at least five days prior to the Closing Date Transaction shall have been consummated substantially concurrently with (i) all documentation and other information reasonably requested by the Administrative Agent or such Lender, as applicable, at least fifteen days prior to the Closing Date on in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the terms set forth Act; and (ii) with respect to any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse relation to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders)such Borrower.
(e) The representations Administrative Agent and warranties the Lenders shall have received copies of the financial statements referred to in Section 5.05, each in form and substance satisfactory to each of them.
(if) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document Since December 31, 2022 there shall not have occurred any event, change, circumstance, occurrence, effect or state of facts that, individually or in the aggregate, has had, or could reasonably be expected to have, a Material Adverse Effect.
(g) The absence of any document furnished at pending or threatened action, suit, investigation or proceeding in any time under court or in connection herewith before any arbitrator or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided Governmental Authority that (x) either individually or in the representations and warranties contained in Section 5.09 shall be deemed to refer aggregate, if determined adversely to the most recent Financial Statements furnished pursuant Company or any Restricted Subsidiary, could reasonably be expected to subsections (a) and (b) of Section 6.01 and have a Material Adverse Effect, or (y) purports to affect any transaction contemplated under this Agreement or any Loan Document or the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding ability of any LoansBorrower to perform its respective obligations under this Agreement or any Loan Document. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Watsco Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantiesGuaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note;
(iii) a pledge agreement, in substantially the certificate form of incorporation Exhibit H (together with each other supplement or comparable documentjoinder delivered pursuant to Section 6.12, in each case as amended, the “Pledge Agreement”), duly executed by each Loan Party, together with:
(A) certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank, and
(B) proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge Agreement, covering the Collateral described in the Pledge Agreement;
(iv) such certificates of resolutions or other action, incumbency certificates including specimen signatures and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party;
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true such documents and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters certifications as the Administrative Agent may reasonably request require to evidence that each Loan Party is duly organized or formed, and otherwise that the Borrower and each Guarantor is validly existing, in form good standing and substance satisfactory qualified to engage in business in its jurisdiction of formation and in the Administrative Agent:State of California.
(1vi) Ca favorable opinion of ▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL to the Loan Parties, addressed to the Administrative Agent and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányieach Lender, Hungarian counsel for FIL as to the matters set forth in Exhibit G and its Subsidiariessuch other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viiivii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixviii) a certificate signed by a Responsible Officer of the Company Borrower certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred Effect; and (C) a calculation of the current Debt RatingsLease Adjusted Leverage Ratio as of December 30, 2007;
(xix) evidence that (1) the Solectron Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09terminated; and
(xivx) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrower and the Administrative Agent).
(d) Evidence that the The Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date occurred on the terms set forth in the Acquisition Agreement (without amendmentor before May 31, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans2008. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The occurrence of the Closing Date, the initial effectiveness of this Agreement and obligation of each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, (as applicableor such Loan Party’s sole or managing member, manager, development manager, general partner, or other comparable constituent entity), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantiesAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note;
(iii) the certificate of incorporation (or comparable document) of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such Organization Documents and other evidence as the Administrative Agent may request to establish that such Person is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies certificates of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viii) a certificate incumbency certificates and/or other certificates of a Responsible Officer of each Loan Party either (Aor such Loan Party’s sole or managing member, manager, development manager, general partner, or other comparable constituent entity) attaching copies as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of all consents, licenses and approvals required each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the execution, delivery and performance by other Loan Documents to which such Loan Party is a party;
(iv) such other documents and certifications as the validity against such Administrative Agent may reasonably require to evidence that each Loan Party is validly existing, in good standing and qualified to engage in business in the jurisdiction of its incorporation or organization;
(v) the favorable opinions of King & Spalding LLP, counsel to the Loan Parties, and local counsel to the Loan Parties, acceptable to the Administrative Agent addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent, covering enforceability of the Loan Documents and other customary matters to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so requiredagreed upon;
(ixvi) a certificate signed by a Responsible Officer of the Company Borrower certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably 95541499_13 expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred Effect; and (C) the current Debt Ratingscalculation of the Consolidated Leverage Ratio as of September 30, 2017;
(xvii) evidence that (1) the Solectron Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters a duly completed Compliance Certificate as of credit thereunder cancelled or defeased in September 30, 2017, signed by a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each Responsible Officer of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09Parent; and
(xivviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuers, the Swing Line Lenders or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Administrative Agent, the Arrangers or any other Lender (whether pursuant to the Fee Letter or otherwise) on or before the Closing Date shall have been paidpaid (including, without limitation, in respect of breakage or redeployment costs incurred in connection with prepayments).
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrower shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs of the Administrative Agent as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrower and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers Loan Parties contained in Article V and (ii) each or any other Loan Party Document, or which are contained in each any other Loan Document or in any document furnished at any time under or in connection herewith or therewiththis Agreement, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects (except, if a qualifier relating to materiality or Material Adverse Effect or a similar concept already applies, such representation or warranty shall be required to be true and correct in all respects, in each case ) on and as of the Closing Date.
(e) No Default shall exist and be continuing as of the Closing Date.
(f) There shall not have occurred a material adverse change since September 30, except to 2017 in the extent that such representations and warranties specifically refer to an earlier datebusiness, assets, liabilities (actual or contingent), operations or financial condition of the Loan Parties taken as a whole.
(g) There shall not exist any action, suit, investigation, or proceeding, pending or threatened, in which case they any court or before any arbitrator or governmental authority that purports to affect the Loan Parties or any transaction contemplated hereby, or that would reasonably be expected to have a Material Adverse Effect.
(h) The Loan Parties shall be true in compliance with all existing financial obligations and correct Contractual Obligations, the failure to comply with which would reasonably be expected to have a Material Adverse Effect.
(i) The Existing Indebtedness has been (or true and correct in all material respects, as the case may will be, as of such earlier date; provided that (xsimultaneously with closing hereunder) the representations repaid and warranties contained satisfied in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) full and (b) of Section 6.01 and (y) the accuracy all lending commitments in respect of the representation and warranty set forth in Section 5.19(aExisting Indebtedness have been terminated.
(j) shall The Loan Documents must not be a condition precedent to the funding violate any provision of applicable laws, constitutive documents, orders of any Loans. Without limiting the generality of Governmental Authority, the provisions of any material agreement to which any Loan Party may be subject or result in the last paragraph creation or imposition of Section 9.03, for purposes any Lien on the assets or property of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.any Loan Party. 95541499_13
Appears in 1 contract
Sources: Fourth Amended and Restated Credit Agreement (Cousins Properties Inc)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be (to the extent applicable) originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
(ii) Notes executed by the Borrowers in favor of each Lender requesting Notes;
(iii) the certificate such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party;
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Loan Party is duly qualified to do business and organized or formed, validly existing, in good standing under (as applicable) and qualified to engage in business in the laws jurisdiction of such jurisdiction), together with an English translation thereof (if appropriate)its formation;
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director favorable opinion of each Loan Party certifying of (aA) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (orG▇▇▇▇▇, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) D▇▇▇ & C▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, (B) M▇▇▇▇▇-▇ ▇▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. internal counsel for FIL to the Loan Parties and its Subsidiaries;
(2C) P▇▇▇, L▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) AL▇▇▇▇ & G▇▇▇▇▇▇▇N.V., Singapore Netherlands counsel for FIL to the Loan Parties, in each case addressed to the Administrative Agent and its Subsidiarieseach Lender;
(4vi) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries[Reserved];
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixvii) a certificate signed by a Responsible Officer of the Company Holdings certifying that (A) that the conditions specified representations and warranties of (i) Holdings and the Borrowers contained in Section 4.01(eArticle V and (ii) each Loan Party contained in each other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and Section 4.02(a) have been satisfiedcorrect on and as of the Closing Date, (B) no Acquired Business Default exists, or would result from such proposed Credit Extension or from the application of the proceeds thereof, (C) there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred Effect; and (CD) the current Debt Ratings;
(xviii) [Reserved]; and
(ix) evidence that (1) the Solectron Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements the Existing Credit Agreement have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may requirereleased.
(b) Any fees required to be paid by the Loan Parties on or before the Closing Date under the Loan Documents shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent and the Arrangers required to be reimbursed by this Agreement (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction The Lenders shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendmentreceived, modification or waiver thereof which is adverse at least five Business Days prior to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except all information they shall have requested under anti-terrorism and anti-money-laundering laws and regulations, including the Patriot Act, and, at least ten Business Days prior to the extent Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any LoansLoan Party. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Celanese Corp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies, or telecopies documents transmitted by electronic mail (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyLead Borrower;
(ii) Notes a Note executed by the Borrowers in favor of each Lender requesting Notesa Note;
(iii) the certificate such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing (A) the authority of each Loan Party to establish that enter into this Agreement and the other Loan Documents to which such Person Loan Party is duly organized a party or is to be a party and existing under (B) the laws identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such jurisdiction), together with an English translation thereof (if appropriate)Loan Party is a party or is to be a party;
(iv) to the extent such jurisdiction has the legal concept copies of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, Party’s Organization Documents and such other evidence documents and certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Loan Party is duly qualified to do business organized or formed, and that each Loan Party is validly existing, in good standing under and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the laws conduct of its business requires such jurisdiction)qualification, together with an English translation thereof (if appropriate)except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a certificate favorable opinion of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC, counsel to the secretary or an assistant secretary (or comparable officer) or a director of Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Party certifying (a) that attached thereto is a true Parties and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and as the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate)Administrative Agent may reasonably request;
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed signed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viii) a certificate of a Responsible Officer of each Loan Party either the Lead Borrower certifying (A) attaching copies that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of all the Audited Financial Statements that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses and or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating or (2) that all such consents, licenses and approvals shall be have been obtained and are in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixvii) a certificate signed by a Responsible Officer evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Company certifying (A) that Agents required under the conditions specified in Section 4.01(e) and Section 4.02(a) Loan Documents have been satisfied, (B) no Acquired Business Material Adverse Effect has occurred obtained and (C) the current Debt Ratingsare in effect;
(xviii) evidence a payoff letter from Israel Discount Bank of New York, as lender under the Existing Credit Agreement satisfactory in form and substance to the Administrative Agent evidencing that (1) the Solectron Existing Credit Agreement has been or concurrently with the Closing Date is being terminated terminated, all obligations thereunder are being paid in full, and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements the Existing Credit Agreement have been or concurrently with the Closing Date are being released released;
(ix) the Security Documents (including, without limitation, the Mortgages and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties;
(xi) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Collateral Agent of all Inventory of the Borrowers, the results of which are satisfactory to the Collateral Agent and (3B) a written report regarding the results of a commercial finance examination of the Loan Parties, the results of which shall be satisfactory to the Collateral Agent;
(xii) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any Mortgages, and releases or subordination agreements satisfactory to the Collateral Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Administrative Collateral Agent relating to for the Notes Repayments delivery of such termination statements and releases, satisfactions and discharges have been made;
(xiA) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Collateral Agent, (B) the Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, and (C) control agreements with respect to the Loan Parties’ securities and investment accounts;
(xiv) evidence that all other actions that the Collateral Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken;
(xv) an appraisal of each of the properties described in the Mortgages complying with the requirements of FIRREA by a third-party appraiser acceptable to the Collateral Agent and otherwise in form and substance satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Collateral Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xivxvi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders Agents reasonably may require.
(b) Any After giving effect to (i) the first funding under the Committed Loans and (ii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $20,000,000.
(c) The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on August 1, 2009, and executed by a Responsible Officer of the Lead Borrower, which Borrowing Base Certificate shall be acceptable to the Administrative Agent in all respects.
(d) The Administrative Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has not occurred since February 28, 2009 (i) any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect or (ii) any action, suit, investigation or proceeding pending or, to the knowledge of the Borrowers, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect.
(e) The Administrative Agent shall be reasonably satisfied that the Real Estate Eligibility Conditions have been satisfied.
(f) The Administrative Agent shall have received and be satisfied with (i) a detailed forecast (x) on a monthly basis for the twelve-month period following the Closing Date and (y) on an annual basis, for each Fiscal Year thereafter through the Maturity Date, including, in each case, an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP and consistent with the Loan Parties’ then current practices and (ii) such other information (financial or otherwise) reasonably requested by the Administrative Agent.
(g) All of the information (other than any projections delivered to the Administrative Agent) shall be complete and correct in all material respects and no changes or developments shall have occurred, and no new or additional information, shall have been received or discovered by the Administrative Agent regarding the Lead Borrower or its Subsidiaries or the transactions contemplated hereby that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. All Projections prepared by the Lead Borrower or at its direction and delivered to the Administrative Agent will represent, at the time of delivery to the Administrative Agent, the Lead Borrower’s good-faith estimate of the future financial performance of the Lead Borrower and its Subsidiaries and will be based upon assumptions which are believed by the Lead Borrower to be reasonable in light of the past performance of the Lead Borrower and its Subsidiaries and then current business conditions.
(h) There shall not have occurred any default of any Material Contract of any Loan Party which could reasonably be expected to have a Material Adverse Effect.
(i) The consummation of the transactions contemplated hereby shall not violate any Law or any Organization Document.
(j) All fees required to be paid to the Agents on or before the Closing Date shall have been paidpaid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(ck) Unless waived by the Administrative Agent and subject to the Fee Letter, the Company The Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrowers and the Administrative Agent).
(dl) Evidence that the Closing Date Transaction The Administrative Agent shall have been consummated substantially concurrently with received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders)USA Patriot Act.
(em) The representations and warranties of (i) the Borrowers contained No material changes in Article V and (ii) each governmental regulations or policies affecting any Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, Credit Party shall be (A) in the case of representations and warranties that are qualified as have occurred prior to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented Consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented Consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Syms Corp)
Conditions of Initial Credit Extension. The obligation of each Lender to make the its initial Credit Extension hereunder on the Closing Date or for the Administrative Agent to arrange for any Letters of Credit on the Closing Date is subject to the prior or substantially concurrent satisfaction or waiver pursuant to Section 11.01 of the following conditions precedentconditions:
(a) The Administrative Agent’s receipt of the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement by each of the parties hereto;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) UCC financing statements in form satisfactory to the Administrative Agent for filing under the Uniform Commercial Code of all jurisdictions in which shall any Loan Party is organized,
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be originals a party;
(v) good standing or telecopies active status certificates, as applicable, of each Loan Party in its jurisdiction of organization and, to the extent reasonably requested by the Administrative Agent, bring-down good standing or active status certificates, as applicable;
(followed promptly by originalsvi) unless otherwise specified, each properly executed [reserved];
(vii) a certificate signed by a Responsible Officer of the signing Loan Party Borrower certifying that the conditions specified in Sections 4.02(a) and (b) have been satisfied;
(viii) [reserved];
(ix) [reserved];
(x) any releases, terminations and such other documents as applicable)Administrative Agent may reasonably request to evidence and effectuate the termination of the Prepetition ABL Credit Facility and all commitments thereunder, each dated the Closing Date (orrepayment in full of all Indebtedness and other amounts owing thereunder, and the cash collateralization of the Existing Letters of Credit, and the termination and release by the Prepetition ABL Agent, except as otherwise provided in the case Interim Financing Order, of certificates any interest in and to any assets and properties of governmental officialseach Borrower and Guarantor securing the Prepetition ABL Credit Facility, a recent date before except as otherwise provided in the Interim Financing Order, duly authorized, executed (to the extent applicable) and delivered by it or each of them; and
(xi) copies of documentation for the DIP Term Facility, which documentation shall include the DIP Term Loan Agreement and all exhibits and schedules thereto and the DIP Term Facility shall have become effective substantially concurrently with this Agreement on the Closing Date.
(b) The Administrative Agent shall have received a Borrowing Base Calculation (either by Approved Electronic Communications or in writing) prepared as of a date not earlier than November 23, 2024.
(c) [Reserved].
(d) The Lenders shall have received, to the extent requested, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(e) [Reserved].
(f) Administrative Agent shall have received evidence, in form and substance satisfactory to Administrative Agent, that Administrative Agent has a valid perfected first priority security interest in all of the ABL Priority DIP Collateral (having the priority set forth in the Interim Financing Order.
(g) The Borrower and each Guarantor shall be a debtor and a debtor-in-possession. All of the “first day orders” entered by the Bankruptcy Court on or about the time of commencement of the Chapter 11 Cases (and if any such orders shall not have been entered by the Bankruptcy Court, the form of such orders submitted to the Bankruptcy Court for approval) of the type referred to in clause (a) (other than the Final Financing Order) and each (b) of the definition of “Approved Bankruptcy Court Order” shall be in form and substance satisfactory to the Administrative Agent and each the Lenders in their reasonable discretion, and all other “first day orders” entered by the Bankruptcy Court on or about the time of commencement of the Lenders:
Chapter 11 Cases (i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
(ii) Notes executed by the Borrowers in favor of each Lender requesting Notes;
(iii) the certificate of incorporation (or comparable document) of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under orders shall not have been entered by the laws of any jurisdiction outside Bankruptcy Court, the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly organized and existing under the laws form of such jurisdiction), together with an English translation thereof (if appropriate);
(iv) orders submitted to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificateBankruptcy Court for approval) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to shall be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:Agent in its reasonable discretion.
(1h) C▇▇▇▇▇The Cash Management Order shall have been entered by the Bankruptcy Court, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals Cash Management Order shall be in full force and effecteffect and shall not have been (x) stayed, vacated or reversed, or (y) amended or modified except as otherwise agreed to in writing by Administrative Agent in its reasonable discretion.
(i) Not later than three (3) Business Days following the commencement of the Chapter 11 Cases (or such later date as the Administrative Agent may agree), an interim order approving the Loan Documents in form and substance satisfactory to each of the Lenders in its reasonable discretion (as the same may be amended, supplemented or modified from time to time after entry thereof in accordance with the terms hereof, the “Interim Financing Order”) shall have been entered by the Bankruptcy Court, which Interim Financing Order shall, among other things, (i) have been entered on such prior notice to such parties as may be satisfactory to the Lenders in their reasonable discretion, (ii) authorize the extensions of credit in respect of the DIP Facilities, each in the amounts and on the terms set forth herein, (iii) grant the DIP Superpriority Claims status and other Collateral and Liens referred to herein and in the other Loan Documents, (iv) approve the payment by the Borrower of the fees provided for herein and under the Fee Letter, (v) approve the repayment in full of the Prepetition ABL Credit Agreement from the proceeds of the DIP Facilities and, upon the indefeasible repayment of the Prepetition ABL Debt, the release of all Liens securing the Prepetition ABL Debt and (vi) not have been (A) stayed, vacated or reversed, or (B) stating that no such consents, licenses amended or approvals are so required;
(ix) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Section 4.01(e) and Section 4.02(a) have been satisfied, (B) no Acquired Business Material Adverse Effect has occurred and (C) the current Debt Ratings;
(x) evidence that (1) the Solectron Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and modified except as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred otherwise agreed to in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or writing by the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee Letter, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its in their reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) discretion. The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from a signed copy of the Interim Financing Order.
(j) No trustee or examiner (other than a fee examiner) having expanded powers (beyond those set forth under Sections 1106(a)(3) and (4) of the Bankruptcy Code) under Bankruptcy Code section 1104 (other than a fee examiner) shall have been appointed or elected, or the Borrower or any Guarantor shall have applied for, consented to, or acquiesced in, any such Lender prior appointment, with respect to the proposed Closing Date specifying its objection Borrower and the Guarantors, any of their Chapter 11 Debtor subsidiaries or their respective properties.
(k) There shall exist no unstayed action, suit, investigation, litigation or proceeding pending or (to the knowledge of the Borrower and the Guarantors) threatened in any court or before any arbitrator or governmental instrumentality (other than the Chapter 11 Cases, the events and circumstances leading thereto, and the consequences that would normally result from the commencement and continuation of the Chapter 11 Cases) that would reasonably be expected to have a Material Adverse Effect;
(l) An Acceptable Plan of Reorganization shall have been filed in the Chapter 11 Cases with the Bankruptcy Court.
(m) [Reserved].
(n) [Reserved].
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantiesGuaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note;
(iii) the certificate such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party;
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Loan Party is duly qualified to do business organized or formed, and that each of the Borrower and Loan Parties is validly existing, in good standing under and qualified to engage in business in its state of incorporation (or formation) and in each other state requested by the laws of such jurisdiction), together with an English translation thereof (if appropriate)Administrative Agent;
(v) a certificate favorable opinion of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, S▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL to the Loan Parties, addressed to the Administrative Agent and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányieach Lender, Hungarian counsel for FIL and its Subsidiariessubstantially in the form attached hereto as Exhibit H;
(viiivi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixvii) a certificate signed by a Responsible Officer of the Company Borrower certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, and (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred and (C) the current Debt RatingsEffect;
(xviii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(1ix) evidence that the Solectron Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements the Existing Credit Agreement have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09released; and
(xivx) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrower and the Administrative Agent).
(d) Evidence that the The Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date occurred on the terms set forth in the Acquisition Agreement (without amendmentor before April 12, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans2011. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Aar Corp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The the Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Parties, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Companyall Collateral Documents;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note;
(iii) the certificate such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request reasonably require authorizing such Loan Party to establish that enter into the transactions contemplated by this Agreement and evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party;
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Loan Party is duly qualified to do business organized or formed, and that each Loan Party is validly existing, in good standing under and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the laws conduct of its business requires such jurisdiction), together with an English translation thereof (if appropriate)qualification;
(v) a certificate favorable opinion of counsel to the secretary or an assistant secretary Loan Parties acceptable to the Administrative Agent (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party including local counsel opinions as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted requested by the board of directors of such Loan Party (or other comparable enabling actionAdministrative Agent) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for and each Lender, as to the benefit of matters set forth concerning the Administrative Agent Loan Parties and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise Loan Documents in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viiivi) a certificate of a Responsible Officer of each Loan Party the Borrower certifying: (A) either (Ax) attaching copies of all material consents, licenses and approvals required in connection with the execution, delivery and performance by such the Loan Party Parties and the validity against such the Loan Party Parties of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (By) stating that no such consents, licenses or approvals are so required, (B) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(vii) (A) the Audited Financial Statements, (B) audited financial statements of Holdings and its Subsidiaries for the 2009 and 2010 fiscal years, (C) unaudited financial statements of Holdings and its Subsidiaries for the Reference Period ended September 8, 2012, and (D) financial projections and business assumptions including forecasts prepared by management of the Borrower of balance sheets, income statements and cash flow statements on a quarterly basis for the 2013 fiscal year and on an annual basis for each year thereafter through the Maturity Date, each in form satisfactory to the Administrative Agent and the Lenders;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect (which insurance shall be acceptable to the Administrative Agent and the Lenders), together with insurance binders or other satisfactory certificates of insurance and endorsements naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the liabilities, assets and properties of the Loan Parties;
(ix) evidence in form and substance reasonably satisfactory to the Administrative Agent that the Collateral Documents shall be effective to create in favor of the Administrative Agent, on behalf of the Secured Parties, a certificate legal, valid and enforceable first priority security interest in and Lien upon the Collateral. All filings, recordings, deliveries of instruments and other reasonable actions necessary or desirable in the opinion of the Administrative Agent to perfect, protect and preserve such security interests shall have been duly effected;
(x) a completed and fully-executed Perfection Certificate for each of the Loan Parties, the results of UCC, tax lien, bankruptcy and litigation searches (and the equivalent thereof in all applicable foreign jurisdictions) with respect to the Loan Parties and the Collateral indicating no Liens other than Permitted Liens and otherwise in form and substance satisfactory to the Administrative Agent; and copies of duly filed UCC-1 forms for each of the Loan Parties in each appropriate jurisdiction and office under the UCC;
(xi) a duly completed Compliance Certificate in form and detail satisfactory to the Administrative Agent and the Lenders, signed by a Responsible Officer of the Company certifying Borrower, as of September 8, 2012 (A) that based upon the conditions specified in Section 4.01(e) unaudited financial statements of Holdings and Section 4.02(a) have been satisfiedits Subsidiaries for the Reference Period ending September 8, (B) no Acquired Business Material Adverse Effect has occurred and (C) 2012), after giving effect to the current Debt Ratings;
(x) evidence that (1) the Solectron Credit Agreement has been or concurrently with Loans made hereunder on the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative AgentDate, (2) all Liens securing obligations under such credit agreements have been or concurrently evidencing pro forma compliance with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indenturesfinancial covenants set forth in Section 7.11 hereof (assuming such financial covenants were in effect as of September 8, 2012);
(xii) satisfactory evidence that, simultaneously with and upon the executed copy application of the Acquisition proceeds of the Loans to be advanced hereunder on the Closing Date, all indebtedness and other obligations outstanding under the Existing Credit Agreement (and all other Liens related documentation (without amendment, modification thereto) will have been paid and satisfied in full and terminated in accordance with the terms thereof or waiver thereof which is adverse to otherwise rolled into the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders)Obligations under this Agreement;
(xiii) true correct and complete certified copies of those documents executed in connection with all Subordinated Debt outstanding on the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09identified on Schedule 4.01(a)(xiii); and
(xiv) such other assurances, environmental reports, other reports, field audits, audits, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any The absence of any event or condition since the date of the Audited Financial Statements that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect.
(c) The absence of any action, suit, investigation or proceeding pending or, to the knowledge of the Loan Parties, threatened in any court or before any arbitrator or governmental authority that would reasonably be expected to have a Material Adverse Effect.
(d) The Lenders shall have completed a due diligence investigation of the Borrower and the Guarantors in scope, and with results, satisfactory to the Lenders.
(e) Arrangements completely satisfactory to the Administrative Agent have been made for the payment at closing of all accrued fees and expenses of the Administrative Agent required to be paid on or before prior to the Closing Date shall have been paid.
made (c) Unless waived by including the reasonable fees and expenses of counsel for the Administrative Agent and subject to the Fee Letter, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to the Closing Date, plus such additional amounts ) and arrangements completely satisfactory to the Arranger for the payment of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or the fees to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that paid on or prior to the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except Arranger pursuant to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any LoansFee Letter. Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make the (including by way of continuation or rollover without novation or substitution) its initial Credit Extension hereunder on hereunder, and the Closing Date is effectiveness of this Agreement, are subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s the Agents’ receipt of the following, each of which shall be originals or telecopies electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing DateDate or such other date reasonably acceptable to the Agents) and each in form and substance satisfactory to the Administrative Agent Agents and each of the LendersLenders unless otherwise specified:
(i) executed counterparts of this Agreement and the GuarantiesAgreement, sufficient in number for distribution to the Administrative AgentAgents, each Lender and the CompanyBorrower;
(ii) Notes executed by the Borrowers a Note in favor of each Lender requesting Notesa Note;
(iii) the a certificate of incorporation a Responsible Officer of the Borrower, attaching copies of the following for the Borrower and certifying that the same are true, correct and complete and in full force and effect, as applicable: (or comparable documentA) its articles and bylaws, and all amendments and modifications thereto, (B) resolutions duly adopted by its board of directors approving the Borrower’s execution, delivery and performance of this Agreement and the other Loan Documents, and (C) incumbency certificates evidencing the identity, authority and capacity of each Responsible Officer of the Borrower authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)Documents;
(iv) such documents and certifications as the Agents may reasonably require to evidence that the extent such jurisdiction has Borrower is duly organized, and that the legal concept of a corporation being Borrower is (A) validly existing and (B) in good standing and a Governmental Authority current status in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)organization;
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director favorable opinion of each Loan Party certifying (a) that attached thereto is a true of L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP and correct copy of B▇▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to the by-laws (or comparable document) of Borrower, each addressed to the Agents and each Lender, covering such Loan Party as in effect (or, if any such Loan Party is organized under customary matters concerning the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true Borrower and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent Agents may reasonably request and otherwise in form and substance reasonably satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL Agents and its Subsidiariesconsistent with opinions delivered pursuant to the Existing Credit Agreement;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viiivi) a certificate of a Responsible Officer of each Loan Party the Borrower (A) either (Ax) attaching copies of all consents, licenses material consents and approvals required in connection with the execution, delivery and performance by such Loan Party the Borrower and the validity against such Loan Party the Borrower of the Loan Documents to which it is a party, and stating certifying that such consents, licenses consents and approvals shall be are in full force and effect, or (By) stating certifying that no such consents, licenses consents or approvals are so required;
, (ixB) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Section 4.01(eSections 4.01(b) and Section (c) and Sections 4.02(a) and (b) have been satisfied, (B) no Acquired Business Material Adverse Effect has occurred satisfied and (C) certifying the current Debt Ratings;
(x) evidence that (1) the Solectron Credit Agreement has been or concurrently with Rating as of the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09Date; and
(xivvii) such the results of UCC, PPSA, bankruptcy, judgment and tax lien searches, in each case with respect to the Borrower and in each relevant jurisdiction, indicating no Liens other assurances, certificates, documents, consents or opinions as than Permitted Liens and otherwise in form and substance satisfactory to the Administrative Agent or the Required Lenders reasonably may requireAgents.
(b) Any The absence of any event or circumstance since the Balance Sheet Date that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(c) The absence of any action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to impair or prevent the consummation of the transactions contemplated by this Agreement. The absence of material misstatements in, or omissions from, the written materials (other than of general industry or general economic nature) previously furnished by or on behalf of the Borrower to the Agents for their review in connection with this Agreement and the transactions contemplated hereby on or prior to the Closing Date; provided that, with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time such projected financial information was prepared and as of the date made available to the Agents or the Lenders (it being understood that such projections are not to be viewed as fact and are subject to significant uncertainties and contingencies, many of which are beyond the Borrower’s control, and that actual results may vary significantly from such projections).
(d) [reserved].
(e) The Agents’ reasonable satisfaction that the Audited Financial Statements of the Borrower fairly present the business and financial condition of the Borrower and its Subsidiaries as of the date thereof.
(i) Arrangements completely satisfactory to the Agents for the payment at closing of all accrued fees and expenses of the Agents required to be paid on or before prior to the Closing Date shall have been paid.
made (c) Unless waived by including the Administrative Agent reasonable and subject to documented out-of-pocket fees and expenses of one U.S. counsel and one Canadian counsel for the Fee LetterAgents, the Company shall have paid all feescollectively, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least one Business Day prior to the Closing Date, plus such additional amounts of such fees, charges fees and disbursements expenses as shall constitute its each counsel’s reasonable estimate of such fees, charges fees and disbursements expenses incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrower and the Administrative AgentAgents for all amounts not so invoiced and estimated).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment), modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in Arranger and the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent Agents shall have received notice from such Lender payment of the fees to be paid on or prior to the proposed Closing Date specifying its objection theretoto such Arranger and the Agents pursuant to the Fee Letters (or other applicable fee letter executed by the Borrower, if any).
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Waste Connections, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantiesGuaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers, Secretary or Assistant Secretary, as the certificate of incorporation (or comparable document) case may be, of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer, Secretary, Assistant Secretary or other authorized Person thereof authorized to establish that act as a Responsible Officer or otherwise on behalf of the applicable Loan Party in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party;
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Loan Party other than Anstec, Inc. is duly qualified to do business organized or formed, and that each Loan Party other than Anstec, Inc. is validly existing, in good standing under and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the laws conduct of its business requires such jurisdiction)qualification, together with an English translation thereof (if appropriate)except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a certificate favorable opinion of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇ ▇▇▇▇▇-▇ ▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇ ▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL to the Loan Parties, addressed to the Administrative Agent and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányieach Lender, Hungarian counsel for FIL as to the matters set forth in Exhibit G and its Subsidiariessuch other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixvi) a certificate signed by a Responsible Officer of the Company Borrower certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred Effect; and (C) a calculation of the current Debt RatingsSenior Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(xvii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(1viii) evidence that the Solectron Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements the Existing Credit Agreement have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09released; and
(xivix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrower and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Keane Inc)
Conditions of Initial Credit Extension. The obligation of each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement, the Guaranties from each Material Domestic Subsidiary of the Borrower, the Pledge Agreement from the Borrower, and other Pledge Documents requested by the GuarantiesAdministrative Agent, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting NotesLender;
(iii) the certificate such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party;
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters certifications as the Administrative Agent may reasonably request require to evidence that each Loan Party is duly organized or formed, and otherwise that each of the Borrower and the Guarantors is validly existing, in form good standing and substance satisfactory qualified to engage in business in the jurisdiction of its organization;
(v) favorable opinion of internal counsel to the Administrative Agent:
(1) CLoan Parties and of Gibson, Dunn & Crutcher LLP, special counsel to the Loan Pa▇▇▇▇▇, Ma▇▇▇▇sse▇ ▇-▇ ▇▇▇▇▇▇▇▇ Administrative Agent and each Lender, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiariesas to the matters set forth in Exhibit G;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viiivi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixvii) a certificate signed by a Responsible Officer of the Company Borrower certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, (B) except as disclosed in the Borrower's SEC Filings made prior to the Closing Date, that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred Effect; and (C) a calculation of the current Debt Ratings;Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date; and
(xviii) evidence that (1) the Solectron Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements the Existing Credit Agreement have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may requirereleased.
(b) Any fees required to be paid by the Borrower to the Administrative Agent, the Lenders or the Arranger on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrower shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrower and the Administrative Agent).
(d) Evidence that the The Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date occurred on the terms set forth in the Acquisition Agreement (without amendmentor before November 12, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders)2003.
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent Agent, each Arranger and each of the Lenders:
(i) fully executed counterparts of this Agreement and the GuarantiesGuaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyPrincipal Borrower;
(ii) Notes a Note executed by the Borrowers in favor of each Lender requesting Notesa Note;
(iii) the certificate such certificates of incorporation (resolutions or comparable document) other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party (provided that with respect to all of the above other than resolutions or similar approval/authority documents, to the extent such Person is duly organized and existing under materials were delivered in connection with the laws Existing Revolving Credit Agreement, the Loan Parties shall be permitted to provide certificates of no change with respect to such jurisdiction), together with an English translation thereof (if appropriateitems);
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters certifications as the Administrative Agent may reasonably request require to evidence that each Loan Party is validly existing and otherwise in form and substance satisfactory to good standing in the Administrative Agent:jurisdiction of such Loan Party’s incorporation, organization, or formation, as applicable;
(v) favorable opinions of (1) C▇▇▇▇▇, M▇ ▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian special counsel for FIL and its Subsidiaries; and
to the Loan Parties, (62) N▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, general counsel of the Principal Borrower, and (3) ▇▇▇▇▇▇ Trócsányiand ▇▇▇▇▇, Hungarian LLP, counsel for FIL to the Administrative Agent, each addressed to the Administrative Agent and its Subsidiarieseach Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(viiivi) a certificate of a Responsible Officer the chief financial officer of each Loan Party the Principal Borrower:
(A) either (A1) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such the Loan Party Parties and the validity against such the Loan Party Parties of the Loan Documents to which it each is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B2) stating that no such consents, licenses or approvals are so required;
(ixB) a certificate signed by a Responsible Officer of the Company certifying (A1) that immediately after giving effect to this Agreement, the other Loan Documents and all the transactions contemplated therein to occur on such date, (x) each Borrower is, and the Loan Parties, taken as a whole, are, Solvent, (y) no Default or Event of Default exists, and (z) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects (or in all respects in the case of a representation or warranty containing a materiality qualifier), (2) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, (B3) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred (except as qualified in clause (b) below), and (4) the current Credit Ratings; and
(C) demonstrating compliance, as of the current Debt Ratings;
(x) evidence that (1) end of the Solectron Credit Agreement has been or concurrently fiscal period ended December 31, 2020, with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased financial covenants contained in a manner satisfactory to the Administrative Agent, Section 7.08 by detailed calculation thereof (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements which calculation shall be in form satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each which shall include, among other things, an explanation of the Subordinated Indentures;
(xii) the executed copy methodology used in such calculation and a breakdown of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent components of the Lenderssuch calculation);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xivvii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) There shall not have occurred a material adverse change since December 31, 2020 in the business, assets, operations or financial condition of the Borrowers and the other Loan Parties, taken as a whole, or in the facts and information, taken as a whole, regarding such entities as represented to date.
(c) There shall not exist any action, suit, investigation, or proceeding pending or threatened in writing, in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect.
(d) Any fees required to be paid on or before the Closing Date shall have been paidpaid (or provisions reasonably satisfactory to the Administrative Agent shall have been made for the concurrent payment thereof).
(ce) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its their reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it them through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrowers and the Administrative Agent).
(df) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) Upon the reasonable request of any Lender made at least ten (10) days prior to the Closing Date, the Borrowers contained shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in Article V connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least five (5) days prior to the Closing Date; and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be least five (A5) in the case of representations and warranties that are qualified as days prior to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to the extent each Lender that so requests, a Beneficial Ownership Certification in relation to such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any LoansLoan Party. Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Highwoods Realty LTD Partnership)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction or waiver in accordance with Section 11.01 of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Third Restatement Date (or, in the case of certificates of governmental officials, a recent date before the Closing Third Restatement Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:):
(i) executed counterparts of this Agreement and the GuarantiesAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrowers, unless otherwise agreed;
(ii) Notes a Note executed by the Borrowers in favor of Bank of America and each other Lender requesting Notesa Note;
(iii) the Ancillary Document Confirmations;
(iv) completed requests for information, dated on or before the date of the initial Credit Extension, listing all other effective financing statements filed in all jurisdictions that the Administrative Agent may deem necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement that name any Loan Party as debtor, together with copies of such financing statements as have been filed since the Original Closing Date;
(v) [reserved];
(vi) a certificate of an authorized officer of each Loan Party, attaching: (a) either (x) a copy of the articles or certificate of incorporation (or comparable document) of each such Loan Party certified as of a recent date by the Secretary of State of the state of organization (or comparable public officialofficial in the United Kingdom and Canada) of its jurisdiction such Loan Party or (y) a certification by a Responsible Officer of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, Loan Party that no changes have been made to such other evidence as articles or certificate since they were last provided to the Administrative Agent may request to establish that such Person is duly organized and existing under the laws of such jurisdiction)Agent, in either case, together with an English translation thereof (if appropriate);
(iv) certificates of such official attesting to the extent such jurisdiction has the legal concept of a corporation being in valid existence, good standing and a Governmental Authority qualification to engage in business in such Loan Party’s jurisdiction issues any evidence of such good standing, a Certificate of Good Standing organization; (b) either (x) the bylaws or operating agreement (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any equivalent such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdictionconstitutional document), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) as applicable, of such Loan Party as in effect on the date of such certification or (ory) a certification by a Responsible Officer of such Loan Party that no changes have been made to such bylaws or operating agreement since they were last provided to the Administrative Agent; and (c) such certificates of resolutions or other action, if any incumbency and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (a party or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents is to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate)party;
(vii) a favorable written opinions from each opinion of Ropes & G▇▇▇ LLP, counsel to the following counsel for the Borrowers and FIL’s SubsidiariesLoan Parties, addressed to the Administrative Agent for and each Lender, as to such matters concerning the benefit of the Administrative Agent Loan Parties and the Lenders, covering such legal matters Loan Documents as the Administrative Agent may reasonably request and otherwise request, in form and substance reasonably satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viii) a certificate favorable opinion of a Responsible Officer local counsel to the Loan Parties in each jurisdiction of each organization of any Loan Party either (A) attaching copies of all consentsrequested by the Administrative Agent, licenses addressed to the Administrative Agent and approvals required in connection with each Lender, as to such matters concerning the execution, delivery Loan Parties and performance by such Loan Party and the validity against such Loan Party of the Loan Documents as the Administrative Agent may reasonably request, in form and substance reasonably satisfactory to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so requiredthe Administrative Agent;
(ix) the Security Agreement, duly executed by each Loan Party;
(x) [reserved];
(xi) a certificate certificate, substantially in the form of Exhibit K, signed by a Responsible Officer of the Company Lead Borrower certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, and (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had, either individually or in the aggregate, a Material Adverse Effect has occurred and (C) the current Debt Ratings;
(x) evidence that (1) the Solectron Credit Agreement has been or concurrently with is continuing on the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated IndenturesDate;
(xii) a certificate, substantially in the executed copy form of Exhibit L, from Holdings attesting to the Solvency of the Acquisition Agreement Loan Parties and all other related documentation (without amendment, modification or waiver thereof which is adverse their Subsidiaries on a consolidated basis before and after giving effect to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders)Transaction, from its chief financial officer or other Responsible Officer;
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders any Lender reasonably may require.
(bi) Any All fees required to be paid to the Administrative Agent and the Arrangers on or before the Closing Third Restatement Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Third Restatement Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent required to be paid on the Third Restatement Date and invoiced at least one (1) Business Day prior to or on the Closing Third Restatement Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrowers and the Administrative Agent).
(di) Evidence that Upon the Closing Date Transaction reasonable request of any Lender made at least ten (10) days prior to the Third Restatement Date, the Borrowers shall have been consummated substantially concurrently provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Closing Date on the terms set forth Act, in the Acquisition Agreement each case at least three (without amendment, modification or waiver thereof which is adverse 3) days prior to the Lenders Third Restatement Date, and (ii) at least three (3) days prior to the Third Restatement Date, any Borrower that qualifies as reasonably determined by a “legal entity customer” under the Administrative Agent) without the prior consent of the Lenders)Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower.
(e) The representations Administrative Agent shall have received evidence in form and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except substance reasonably satisfactory to the extent Administrative Agent that such representations and warranties specifically refer all action that the Administrative Agent may deem necessary or desirable in order to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as perfect the case may be, as of such earlier date; provided that (x) Liens created under the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any LoansSecurity Agreement has been taken. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Third Restatement Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Novanta Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (or, in the case of the Initial Designated Borrower, an officer of the Initial Designated Borrower authorized to represent the Initial Designated Borrower, as applicableevidenced by a recent extract from the Dutch Trade Register or otherwise), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of (i) this Agreement executed by each Borrower and (ii) the GuarantiesGuaranty Agreement executed by each Borrower and each Material Domestic Subsidiary as of the Closing Date (other than ▇▇▇▇▇ Radiant, Inc.), sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
(ii) Notes executed by the Borrowers in favor of each Lender requesting Notes;
(iii) the certificate such certificates or resolutions or other action, incumbency certificates and/or other certificates of incorporation (or comparable document) Responsible Officers of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to establish that act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Person Loan Party is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)a party;
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing documents and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Loan Party is duly qualified to do business organized or formed, and that each Loan Party is validly existing, in good standing under the laws and qualified to engage in business in its jurisdiction of such jurisdiction), together with an English translation thereof (if appropriate)organization;
(v) a certificate favorable opinion of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇ ▇▇▇▇▇-▇ ▇▇▇▇▇▇▇, Colt & Mosle ▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, U.S. counsel for FIL to the Loan Parties, and its Subsidiaries;
(2ii) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇. ▇▇▇▇▇▇, Singapore counsel for FIL General Counsel of the Company, in each case addressed to the Administrative Agent and its Subsidiarieseach Lender, in form and substance acceptable to the Administrative Agent and each Lender;
(4vi) Muhammad R C Uteem LLM TEPa favorable opinion of NautaDutilh, Mauritius Dutch counsel for FIL to the Administrative Agent, addressed to the Administrative Agent and its Subsidiarieseach Lender, in form and substance acceptable to the Administrative Agent and each Lender;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viiivii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixviii) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, satisfied and (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that (i) has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect or (ii) has occurred resulted in a “Default” or “Event of Default” under and (C) as defined in the current Debt RatingsExisting Credit Agreement;
(xix) evidence that (1) a copy of the Solectron Credit Agreement has been or concurrently with the Closing Date is being terminated 2010 Senior Note Purchase Agreement, duly executed by each party thereto and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released form and (3) arrangements substance satisfactory to the Administrative Agent relating to the Notes Repayments have been madeand each Lender;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xivx) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require; and
(xi) A payoff letter with respect to the Existing Credit Agreement, executed by the parties thereto.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies fax transmissions (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersLenders unless otherwise specified:
(i) executed counterparts of (A) this Agreement and (B) the GuarantiesReaffirmation of Guaranty, in each case, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyParent;
(ii) Notes executed by the Borrowers a Note in favor of each Lender requesting Notesa Note;
(iii) the certificate of incorporation for each Loan Party, (A) its charter (or comparable similar formation document) of each Loan Party ), certified by the Secretary of State appropriate governmental authority, or in lieu thereof a certification from such Loan Party that its charter (or comparable public officialsimilar formation document) of its jurisdiction of organization (or, if any such Person is organized has not changed from those previously delivered to the administrative agent under the laws Existing Credit Agreement, (B) its bylaws (or similar governing document), or in lieu thereof a certification from such Loan Party that its bylaws (or similar governing document) have not changed from those previously delivered to the administrative agent under the Existing Credit Agreement, (C) resolutions duly adopted by its board of any jurisdiction outside directors (or similar governing body) approving such Loan Party’s execution, delivery and performance of this Agreement and the United Statesother Loan Documents to which it is party, and (D) incumbency certificates evidencing the identity, authority and capacity of each Responsible Officer of such Loan Party authorized to act as a Responsible Officer in connection with this Agreement and the other evidence Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Loan Party is duly organized or formed, and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for that each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business validly existing and in good standing under the laws in its jurisdiction of such jurisdiction), together with an English translation thereof (if appropriate)organization;
(v) a certificate an opinion of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (orP▇▇▇ ▇▇▇▇▇▇▇▇ LLP, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of counsel to the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s SubsidiariesParties, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenderseach Lender, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL Agent and its Subsidiariesthe Required Lenders;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viiivi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all stating that no consents, licenses and or approvals of any Governmental Authority or pursuant to any Material Contract are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixvii) a certificate signed by a Responsible Officer of the Company Borrowers certifying (A) that the conditions specified in Section Sections 4.01(e) and Section (f) and Sections 4.02(a) and (b) have been satisfied, (B) no Acquired Business Material Adverse Effect has occurred and (C) the current Debt Ratings;
(xviii) evidence that (1) all insurance required to be maintained pursuant to the Solectron Credit Agreement Loan Documents has been or concurrently with the Closing Date obtained and is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09effect; and
(xivix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees and expenses required to be paid pursuant to any Loan Document on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) payable pursuant to the Loan Documents to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the The Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date occurred on the terms set forth in the Acquisition Agreement (without amendmentor before August 31, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders)2025.
(e) The representations and warranties There shall have been no event or circumstance since August 31, 2024 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(f) There shall be no action, suit, investigation or proceeding pending or, to the knowledge of the Borrowers, threatened in writing in any court or before any arbitrator or Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
(ig) (x) Upon the reasonable request of any Lender made at least ten days prior to the Closing Date, the Borrowers contained in Article V shall have provided to such Lender, and (ii) each Loan Party contained in each such Lender shall be reasonably satisfied with, the documentation and other Loan Document or in any document furnished at any time under or information so requested in connection herewith or therewithwith applicable “know your customer” and anti-money-laundering rules and regulations, shall be (A) in including, without limitation, the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respectsPatriot Act, in each case on at least three Business Days prior to the Closing Date and as of (y) at least three Business Days prior to the Closing Date, except any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to the extent each Lender that so requests, a Beneficial Ownership Certification in relation to such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any LoansLoan Party. Without limiting the generality of the provisions of the last paragraph of Section 9.039.03(c), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Unifirst Corp)
Conditions of Initial Credit Extension. The obligation of each Lender and the Letter of Credit Issuer to make the any initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
: (a) The Administrative Agent’s receipt of the following, each of which shall following items (except those items that are expressly permitted to be originals or telecopies (followed promptly by originals) unless otherwise specifieddelivered after the Closing Date pursuant to the Post-Closing Agreement), each properly executed by a Responsible Officer of the signing applicable Loan Party (as applicable)Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
its legal counsel: (i) executed counterparts of this Agreement and each of the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
Security Instruments; (ii) Revolving Credit Loan Notes executed by the Borrowers in favor of each Lender requesting Notes;
a Revolving Credit Loan Note; (iii) the a Secretary’s certificate of incorporation (or comparable document) of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly organized and existing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State certifying as to (or comparable public officialA) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy complete copies of the by-laws (or comparable document) all Organizational Documents of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction)attached thereto, (bB) that attached thereto are true and correct copies resolutions of resolutions duly adopted by the board Board of directors of such Loan Party (Directors or other comparable enabling action) and continuing in effect, which (i) authorize the organizational action authorizing execution, delivery and performance by such Person of the all Loan Documents to be executed by which such Person Loan Party is a party, and (C), incumbency of officers (including specimen signatures) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the other Loan Documents to be executed by which such Person, together with Loan Party is a certified English translation thereof party; (if appropriate);
(viiiv) favorable written opinions certification from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters any applicable Governmental Authority as the Administrative Agent may reasonably request require to evidence that each Loan Party is duly organized or formed, and otherwise that each Loan Party is validly existing, in form good standing and substance satisfactory qualified to engage in business in its jurisdiction of organization and in any other jurisdiction in which the Administrative Agent:
failure to be so qualified could reasonably be expected to have a Material Adverse Effect, including certificates of good standing and qualification to engage in business in each applicable jurisdiction; (1v) Ca favorable opinion of ▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian counsel to the Loan Parties, and acceptable Canadian and New York counsel to the Loan Parties, each addressed to the Administrative Agent and each Lender and their successors and assigns, as to the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request; (including Labuanvi) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiaries;
(viii) a certificate certificates of a Responsible Officer Officers of each the Borrower Agent or the applicable Loan Party Parties either (A) attaching copies of identifying all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party each Borrower and the validity against each such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, and attaching true and correct copies thereof or (B) stating that no such consents, licenses or approvals are so required;
; 121 [Matrix] Credit Agreement #85638137 (ixvii) a certificate signed by a Responsible Officer of the Company Borrower Agent certifying (A) that the conditions specified in Section 4.01(eSections 5.02(a) and Section 4.02(a5.02(b) have been satisfiedsatisfied and (B) as to the matters described in Section 5.01(d); (viii) (A) audited financial statements of the Company and its Subsidiaries for each of the three (3) fiscal years immediately preceding the Closing Date, (B) no Acquired Business Material Adverse Effect has occurred unaudited interim financial statements for the Company and its Subsidiaries as of July 31, 2021, and (C) financial projections of the current Debt Ratings;
Company and its Subsidiaries for the next two (2) fiscal years; (ix) a certificate signed by the Chief Financial Officer or the Chief Accounting Officer of the Borrower Agent certifying that, after giving effect to the entering into of the Loan Documents and the consummation of all of the Transactions, (A) each Borrower is Solvent and (B) the Loan Parties, taken as a whole, are Solvent; (x) evidence that (1) all insurance required to be maintained pursuant to the Solectron Credit Agreement Loan Documents has been or concurrently obtained and is in effect; (xi) an initial Borrowing Base Certificate; (xii) initial written notice of Borrowing; (xiii) delivery of UCC and PPSA financing statements, suitable in form and substance for filing in all places required by applicable law to perfect the Liens of the Administrative Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable law to perfect the Liens of the Administrative Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Administrative Agent may require; (xiv) UCC and PPSA search results showing only those Liens as are acceptable to the Administrative Agent and Lenders; (xv) evidence of the payment in full and cancellation of the Existing Agreement, including terminations of UCC and PPSA financing statements filed in connection with the Closing Date is being terminated Existing Agreement and all letters other evidence of credit thereunder cancelled or defeased in a manner satisfactory lien releases and other related matters on terms acceptable to the Administrative Agent, ; (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xixvi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
consummation (xiiin compliance with all applicable laws and regulations, with the receipt of all material governmental, shareholder and third party consents and approvals relating thereto) the executed copy of the Acquisition Agreement Transactions; (xvii) completion of a Field Exam, asset appraisal, insurance review and all other related documentation legal review; and (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09; and
(xivxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the Letter of Credit Issuer, the Swing Line Lender or the Required Lenders may reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to the Fee Letter, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition . 122 [Matrix] Credit Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.#85638137
Appears in 1 contract
Sources: Credit Agreement (Matrix Service Co)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantiesAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the CompanyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting Notesa Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the certificate Administrative Agent may require evidencing the identity, authority and capacity of incorporation each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(or comparable documentiv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the Secretary appropriate Governmental Authority of State (the state or comparable public official) other jurisdiction of its jurisdiction incorporation or organization, where applicable, and certified by a secretary or assistant secretary of organization (or, if any such Person is organized under Borrower to be true and correct as of the laws of any jurisdiction outside the United States, Closing Date and such other evidence documents and certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Loan Party is duly organized or formed, and existing under that each of the laws of such jurisdiction)Loan Parties is validly existing, together with an English translation thereof (if appropriate);
(iv) to the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority qualified to engage in such business in each jurisdiction issues any evidence where its ownership, lease or operation of such good standing, a Certificate of Good Standing (properties or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) conduct of its jurisdiction of organization (or, if any business requires such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)qualification;
(v) a certificate favorable opinion of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying (a) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, U.S. counsel for FIL and its Subsidiaries;
(2) P▇ ▇▇▇, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL and its Subsidiaries;
(3) A▇▇▇▇ & G▇▇▇▇▇▇▇, Singapore counsel for FIL ▇ and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL to the Loan Parties, addressed to the Administrative Agent and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányieach Lender, Hungarian counsel for FIL as to such matters concerning the Loan Parties and its Subsidiariesthe Loan Documents as the Administrative Agent may request;
(viiivi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixvii) a certificate signed by a Responsible Officer of the Company Borrower certifying (A) that the conditions specified in Section 4.01(eSections 4.02(a), (b) and Section 4.02(a(c) have been satisfied, (B) that there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred Effect; and (C) a calculation of the current Debt RatingsConsolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on March 31, 2011, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) evidence that (1) a certificate executed by a Responsible Officer of the Solectron Credit Agreement has been or concurrently with Borrower as of the Closing Date is being terminated Date, in form and all letters of credit thereunder cancelled or defeased in a manner substance satisfactory to the Administrative Agent, regarding the Solvency of (2A) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and Borrower, (3B) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each of the Subordinated Indentures;
other Loan Parties, and (xiiC) the executed copy of the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09Parties on a consolidated basis; and
(xivxi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any The Administrative Agent shall have received executed counterparts of the Fee Letter, and any fees required to be paid hereunder or under the Fee Letter on or before the Closing Date shall have been paidpaid (provided such fees may be paid from the proceeds of such initial Credit Extension).
(c) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company Borrower and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V Borrower and (ii) each other Loan Party contained in each Section 5 or any other Loan Document Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date.
(e) No Default shall exist, except or would result from, such proposed Credit Extension or from the application of the proceeds thereof.
(f) There shall not have occurred any event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(g) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy knowledge of the representation and warranty set forth Borrower and/or Guarantors, threatened in Section 5.19(a) shall not any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a condition precedent to the funding of any LoansMaterial Adverse Effect. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make the its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
(ii) Notes executed by the Borrowers in favor of each Lender requesting Notes;
(iii) the certificate of incorporation (certificates executed by a secretary, assistant secretary or comparable document) equivalent of each Loan Party certified by Party, which certify and attach true and complete copies of the Secretary Organization Documents of State each Loan Party, resolutions of its board of directors or equivalent governing body and incumbency of signatories (or comparable public officialequivalents) of its jurisdiction of organization to the Loan Documents;
(or, if any iv) such Person is organized under the laws of any jurisdiction outside the United States, such other evidence customary documents and certifications as the Administrative Agent may request reasonably require to establish evidence that such Person each Loan Party is duly organized and existing under the laws of such jurisdictionorganized, incorporated or formed (as applicable), together with an English translation thereof (if appropriate);
(iv) to the extent such jurisdiction has the legal concept of a corporation being and that each Loan Party is validly existing and in good standing and a Governmental Authority is qualified to engage in such business in each jurisdiction issues any evidence where its ownership, lease or operation of such good standing, a Certificate of Good Standing (properties or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) conduct of its jurisdiction of organization (orbusiness requires such qualification, if any such Person is organized under except to the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request extent that failure to establish that such Person is duly be so qualified could not reasonably be expected to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate)have a Material Adverse Effect;
(v) a certificate of the secretary or an assistant secretary (or comparable officer) or a director favorable opinion of each Loan Party certifying of (aA) that attached thereto is a true and correct copy of the by-laws (or comparable document) of such Loan Party as in effect (or, if any such Loan Party is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (b) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Loan Party (or other comparable enabling action) and continuing in effect, which (i) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (ii) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (c) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) a certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) favorable written opinions from each of the following counsel for the Borrowers and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably request and otherwise in form and substance satisfactory to the Administrative Agent:
(1) C▇▇▇▇▇, M▇▇▇▇▇-▇▇▇▇▇▇▇▇ & English, Colt & Mosle LLP, counsel to the Loan Parties, and (B) internal U.S. counsel for FIL to the Loan Parties, in each case addressed to the Administrative Agent and its Subsidiarieseach Lender;
(2vi) P▇▇▇a favorable opinion of internal United Kingdom counsel to the Loan Parties, ▇▇▇▇▇ & N▇▇▇▇▇, Malaysian (including Labuan) counsel for FIL addressed to the Administrative Agent and its Subsidiarieseach Lender;
(3vii) A▇▇▇▇ & G▇▇▇▇▇▇▇a favorable opinion of internal German counsel to the Loan Parties, Singapore counsel for FIL addressed to the Administrative Agent and its Subsidiaries;
(4) Muhammad R C Uteem LLM TEP, Mauritius counsel for FIL and its Subsidiaries;
(5) H▇▇▇▇▇ B▇▇▇▇▇▇ LLP, Canadian counsel for FIL and its Subsidiaries; and
(6) N▇▇▇ ▇▇ Trócsányi, Hungarian counsel for FIL and its Subsidiarieseach Lender;
(viii) a certificate of a Responsible Officer of each Loan Party the Company either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such each Loan Party and the validity against such each Loan Party of the Loan Documents to which it is a party, if any, and stating certifying that such consents, licenses and approvals shall be are in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ix) a certificate signed by a Responsible Officer of the Company certifying that (A) that the conditions specified in Section 4.01(eSections 4.02(a) and Section 4.02(a(b) have been satisfied, ; (B) with respect to the Company and its Subsidiaries, there has been no Acquired Business event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect has occurred Effect; and (C) the current Debt Ratings;
(x) evidence that (1) the Solectron Credit Agreement has been there is no action, suit, investigation or concurrently with the Closing Date is being terminated and all letters of credit thereunder cancelled or defeased in a manner satisfactory proceeding pending or, to the Administrative Agent, (2) all Liens securing obligations under such credit agreements have been or concurrently with the Closing Date are being released and (3) arrangements satisfactory to the Administrative Agent relating to the Notes Repayments have been made;
(xi) evidence satisfactory to the Administrative Agent that the Obligations (to the extent constituting principal and interest) are “Designated Senior Debt” for purposes of and as defined in each knowledge of the Subordinated Indentures;
(xii) the executed copy of the Acquisition Agreement and all other related documentation (without amendmentCompany, modification threatened in any court or waiver thereof which is adverse before any arbitrator or Governmental Authority that could reasonably be expected to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders);
(xiii) true correct and complete copies of the Financial Statements, Closing Date Pro Forma Consolidated Balance Sheet and Projections referred to in Section 5.09have a Material Adverse Effect; and
(xivx) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(bi) Upon the reasonable request of any Lender made at least ten (10) days prior to the Closing Date, each Loan Party shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the Patriot Act Disclosures so requested, and (ii) at least five (5) days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party; and
(c) Any fees required to be paid on or before the Closing Date shall have been paid.
(cd) Unless waived by the Administrative Agent and subject to the Fee LetterAgent, the Company shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing DateDate and required to be paid or reimbursed by the Company pursuant to Section 10.04(a), plus such additional amounts of such fees, charges and disbursements as shall constitute its the Administrative Agent’s reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) Evidence that the Closing Date Transaction shall have been consummated substantially concurrently with the Closing Date on the terms set forth in the Acquisition Agreement (without amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Lenders).
(e) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be (A) in the case of representations and warranties that are qualified as to materiality, true and correct, and (B) in the case of representations and warranties that are not qualified as to materiality, true and correct in all material respects, in each case on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct or true and correct in all material respects, as the case may be, as of such earlier date; provided that (x) the representations and warranties contained in Section 5.09 shall be deemed to refer to the most recent Financial Statements furnished pursuant to subsections (a) and (b) of Section 6.01 and (y) the accuracy of the representation and warranty set forth in Section 5.19(a) shall not be a condition precedent to the funding of any Loans. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
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